text:
(a) The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties and for the obtaining of injunctive relief or specific performance regarding this chapter and the regulations adopted pursuant to this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other regulation of the commission, including, but not limited to, the nonpayment of assessments. A bond shall not be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.

(b) A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 of the Code of Civil Procedure is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or inadequate remedy at law specified in Sections 526 and 527 of the Code of Civil Procedure is not required.

(c) Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding spiny lobster until the judgment is fully complied with and satisfied. The injunction shall be stayed for a period of 30 days. Upon a favorable judgment for the commission, it shall be entitled to receive reimbursement for any reasonable attorney’s fees and other actual related costs. Venue for these actions may be established at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.

article: 6. Assessments and Records


kind: section

code: FAC

text: Any action by the commission for any violation of this chapter shall be commenced within two years from the date of the discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the act of which the person complains.

history: (History: Added by Stats. 2017, Ch. 503, Sec. 1. (AB 944) Effective January 1, 2018. Provisions operative or inoperative as prescribed in Sections 79180.5, 79181.5, and 79195 et. seq. Repealed conditionally pursuant to Section 79182.5.)

article: 6. Assessments and Records

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 25.5. California Spiny Lobster Commission > 6. Assessments and Records


text: The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.

division: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS

part: 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS

chapter: 25.5. California Spiny Lobster Commission

article: 6. Assessments and Records


text: Every five years, commencing with the fifth year following certification of the commission, the secretary shall hold a hearing to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among eligible persons regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum. If a reapproval referendum is required, the operation of this chapter shall be continued in effect if the secretary finds that a majority of the eligible persons voting in the referendum voted in favor of continuing this chapter.

history: (History: Added by Stats. 2017, Ch. 503, Sec. 1. (AB 944) Effective January 1, 2018. Repealed conditionally pursuant to Section 79182.5.)

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 25.5. California Spiny Lobster Commission > 7. Continuation or Suspension and Termination


text: If the secretary finds after conducting a hearing that no substantial question exists or that a favorable vote has been given, the secretary shall certify that this chapter remains operative. If the secretary finds that a favorable vote has not been given, he or she shall certify and declare that the operation of this chapter and the commission is suspended upon the expiration of the fishing season of the year in which the certification is made. Thereupon, the operations of the commission shall be concluded and moneys distributed in the manner provided in Section 79197. No bond or security shall be required for that referendum.

article: 7. Continuation or Suspension and Termination


text: The process specified in Section 79195 shall be conducted by the secretary every fifth year following the initial certification of the commission, unless a referendum is conducted as the result of a petition pursuant to Section 79196.5. In that case, the hearing, and the referendum if required, shall be conducted every fifth year following the industry petitioned referendum.


text:
(a) Upon a finding by a two-thirds vote of the membership of the commission that the operation of this chapter has not tended to achieve its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, a suspension shall not become effective until the expiration of the current fishing season.

(b) The secretary, upon receipt of the recommendation, shall or, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the fishermen who landed not less than 20 percent of the total quantity of spiny lobster in the immediately preceding fishing season, may hold a referendum among the fishermen to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not tended to achieve its declared purposes.

(c) The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures as may be necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. If at least 40 percent of the total number of fishermen from the list established by the secretary participate in the referendum, the secretary shall suspend the operation of this chapter if he or she finds either one of the following has occurred:

(1) Sixty-five percent or more of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting sold or handled a majority of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.

(2) A majority of the fishermen who voted in the referendum voted in favor of suspension, and the fishermen so voting landed or handled 65 percent or more of the total quantity of spiny lobster in the preceding fishing season by all of the fishermen who voted in the referendum.


text: After the effective date of suspension of this chapter, the operation of the commission shall be concluded and all moneys held by the commission not required to defray the expenses of concluding and terminating operations of the commission shall be returned on a pro rata basis to all persons from whom assessments were collected in the immediately preceding fishing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remittance of the prorated refund to these persons, any moneys remaining after the payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program conducted or used to fund activities related to the subject matter of this chapter.


text: Upon the suspension of the operation of this chapter, the commission shall mail a copy of the notice of the suspension to all eligible persons affected by the suspension whose names and addresses are on file.


text: The production and marketing of blueberries constitute an important industry of this state that provides substantial and necessary revenues for the state and employment for its citizens.

history: (History: Added by Stats. 2009, Ch. 366, Sec. 1. (AB 606) Effective January 1, 2010.)

chapter: 26. California Blueberry Commission

article: 1. Declaration and General Provisions

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 26. California Blueberry Commission > 1. Declaration and General Provisions


text: The establishment of the commission is necessary for the efficient creation and management of a research program to develop improved varieties of blueberries, an integrated approach to manage pests and diseases common to blueberries, and more efficient cultural practices. The commission is also necessary for the efficient development and management of a state, national, and international advertising and promotion program that, combined with the research program, will enhance the competitiveness of the California blueberry industry within the national and international marketplace.

article: 1. Declaration and General Provisions


text: The maintenance of the blueberry industry in California is necessary to assure the public of a continuous supply of this important commodity and the maintenance of needed levels of income for those engaged in the blueberry industry of this state.

article: 1. Declaration and General Provisions


text: The production and marketing of blueberries produced in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.

article: 1. Declaration and General Provisions


text: The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of blueberries the opportunity to avail themselves of the benefits of collective action in the broad fields of transportation, pest management, advertising, promotion, food safety, production research, nutrition, marketing research, quality and maturity standards, the collection and dissemination of crop volume and related statistics, and public education.

article: 1. Declaration and General Provisions


text: No action taken by the commission, or by any individual in accordance with this chapter or with rules and regulations adopted under this chapter, shall be deemed a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any rule of statutory or common law against monopolies or combinations in restraint of trade.

article: 1. Declaration and General Provisions


text: It is hereby declared as a matter of legislative determination that members of the commission are intended to represent and further the interest of the particular industry concerned and that this representation and furtherance is intended to serve the public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to, and constitutes the public generally within the meaning of Section 87103 of the Government Code.

article: 1. Declaration and General Provisions


text: Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.

article: 2. Definitions

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 26. California Blueberry Commission > 2. Definitions


text: “Advertising and promotion” mean, in addition to their ordinarily accepted meaning, any plan directed toward increasing the sale of blueberries in domestic or foreign markets and trade promotion and activities for the prevention, modification, or removal of trade barriers that affect the marketing of blueberries.

article: 2. Definitions


text: “Blueberries” mean all blueberries produced in California for commercial purposes.

article: 2. Definitions


text: “Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.

article: 2. Definitions


text: “Commission” means the California Blueberry Commission.

article: 2. Definitions


text:
(a) “Districts” consist of the following:

(1) District 1 consists of all counties in the state along the coastline, including San Diego.

(2) District 2 consists of the counties in the state that do not border the coastline and lie north of a line drawn on the north boundaries of the Counties of Fresno, Inyo, and San Benito.

(3) District 3 consists of all counties in the state that do not border the coastline and lie south of the boundary line set forth in paragraph (2).

(b) The boundaries of any district may be changed and districts may be added or eliminated by a two-thirds vote of the commission, which is concurred in by the secretary, so long as proper notice is provided to all persons subject to this chapter prior to the action. The boundaries need not coincide with county lines.

article: 2. Definitions


text: “Ex officio members” are nonvoting members of the commission.

article: 2. Definitions


text: “Handle” means to engage in the business of a handler.

article: 2. Definitions


text:
(a) “Handler” means any person who engages, in this state, in the operation of selling, marketing, or distributing blueberries that he or she has produced or purchased or acquired from a producer, or that he or she is marketing on behalf of a producer, whether as owner, agent, employee, broker, or otherwise.

(b) When the handler is a corporation or a limited liability company, all of the directors, officers, managers, and members of the corporation or limited liability company in their capacity as individuals shall be included, and any liability for failure to collect or make payment of assessments to which a corporate handler or a handler that is a limited liability company may be subject pursuant to this chapter shall include identical liability upon each individual director, officer, manager, or member of the corporation or limited liability company.

(c) “Handler” does not include a retailer, except for a retailer who purchases or acquires from any producer, or handles on behalf of any producer, blueberries that were not previously subjected to regulation by the commission.

article: 2. Definitions


text: “Market” or “marketing” means to sell or otherwise distribute blueberries into commercial channels or trade resulting in the sale of blueberries.

article: 2. Definitions


text: “Marketing research” means any research relating to the sale of blueberries.

article: 2. Definitions


text: “Marketing season” or “fiscal year” are synonymous terms and mean the period beginning March 1, 2010, to September 30, 2011, and, thereafter, October 1 of any year and extending through September 30 of the following year.

history: (History: Amended by Stats. 2010, Ch. 365, Sec. 7. (AB 1795) Effective January 1, 2011.)

article: 2. Definitions


text: “Producer” and “grower” are synonymous terms and mean any person who produces or causes to be produced on land totaling more than five acres of blueberries for market and who shall, upon request of the commission, provide proof of commodity sale.

article: 2. Definitions


text: “Production research” means any research relating to the production, harvest, and postharvest handling of blueberries.

article: 2. Definitions


text: “Secretary” means the Secretary of Food and Agriculture.

article: 2. Definitions


text:
(a) There is in the state government the California Blueberry Commission. Except as provided in subdivision (c), the commission shall be composed of five producers, five handlers, and one public member. Three producer members shall be elected by and from producers within the respective districts, one from each district, and two producer members shall be elected by and from producers on a statewide basis without reference to districts. The handler members shall be elected by and from handlers on a statewide basis without reference to districts. The public member shall be appointed to the commission by the secretary from nominees recommended by the commission. Each entity subject to this chapter is limited to two representatives, one representing producers and one representing handlers.

(b) The secretary and other appropriate persons as determined by the commission shall be ex officio members of the commission.

(c) The commission may modify the number of producers and handlers who serve on the commission by a two-thirds vote of the commission that is concurred in by the secretary, so long as proper notice is provided to all persons subject to this chapter prior to the action and the number of producers and the number of handlers who serve on the commission remain equal.

article: 3. The California Blueberry Commission

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 26. California Blueberry Commission > 3. The California Blueberry Commission


text:
(a) The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or in violation of this chapter.

(b) If the commission refuses or fails to cease those activities or functions or to make corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until such time as the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.

(c) Actions of the commission in violation of the secretary’s written notice shall be without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.

(d) Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that he or she determines are not in the public interest or are in violation of this chapter, and his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and may make recommendations that will make those activities or functions acceptable to the secretary.

article: 3. The California Blueberry Commission


text: The commission or the secretary may bring an action for judicial relief from the secretary’s written notice, or from noncompliance by the commission with the written notice, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.

article: 3. The California Blueberry Commission


text: The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities under this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.

article: 3. The California Blueberry Commission


text: Except for the ex officio members of the commission, each member of the commission shall have an alternate member elected in the same manner as the member. An alternate member, in the absence of the member for whom he or she is an alternate, shall serve in place of the member on the commission. An alternate member may also serve in place of any other absent member of the same classification, producer or handler, if the member’s alternate is also absent. However, an alternate may not serve in place of more than one absent member at a meeting. An alternate member serving in place of a member shall have and be able to exercise all rights, privileges, and powers of the member when serving on the commission. In the event of death, removal, resignation, or the disqualification of a member, the alternate for the member, or another alternate of the same classification if the alternate for the member is absent, shall act as a member on the commission until a qualified successor is elected.

article: 3. The California Blueberry Commission


text: Any vacancy on the commission including, but not limited to, the failure of any person elected to the commission as a member or alternate member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled by the appointment of another person, for the unexpired portion of the term, by a majority vote of the commission. However, the appointee shall fulfill all the qualifications set forth in this article as required for the office he or she is to occupy. The qualifications of any person to fill a vacancy on the commission shall be certified in writing to the secretary. The secretary shall notify the commission if he or she determines that the person is not qualified.

article: 3. The California Blueberry Commission


text: A producer member or his or her alternate on the commission shall be an individual, partner, or employee of a producer who has a financial interest in producing, or causing to be produced, blueberries for market. The producer member or his or her alternate shall be so qualified during the entire term of office.

article: 3. The California Blueberry Commission


text: A handler member or his or her alternate on the commission shall be an individual, partner, or employee of a handler who has a financial interest in handling blueberries for market. The handler member or his or her alternate shall be so qualified during the entire term of office.

article: 3. The California Blueberry Commission


text: The public member, or his or her alternate on the commission, shall have all the powers, rights, and privileges of any other member on the commission. The public member shall not have any financial interest in the blueberry industry.

article: 3. The California Blueberry Commission


text: The term of office of all members of the commission and alternates, except any ex officio member, shall be two years from the date of their election and until their successors are elected, except, that of the first members of the commission, one-half shall serve one year and one-half shall serve two years. The determination of the term of each member shall be made by lot at the time of election.

article: 3. The California Blueberry Commission


text: The commission may sue and be sued and enter into contracts. Copies of its proceedings, records, and acts, when authenticated, shall be admissible in evidence in all courts of the state, and shall be prima facie evidence of the truth of all statements therein.

article: 3. The California Blueberry Commission


text: A quorum of the commission is a majority of the producer members and a majority of the handler members on the commission. Except as otherwise provided in this chapter, the vote of a majority of members present at a meeting at which there is a quorum shall constitute an act of the commission.

article: 3. The California Blueberry Commission


text: The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meeting of the commission. However, the secretary is not entitled to attend an executive session of the commission called for the purpose of discussing potential or actual litigation against the department.

article: 3. The California Blueberry Commission


text: No member of the commission or of any committee established by the commission, which may include nonmembers of the commission, shall receive a salary. Except for ex officio government members, the members may receive reasonable and necessary traveling expenses and meal allowances, as established by the commission, for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.

article: 3. The California Blueberry Commission


text: If the secretary is required to concur in a decision of the commission, he or she shall indicate his or her response to the commission within 15 working days from notification of the decision. The response may be a request that additional information be provided.

article: 3. The California Blueberry Commission


text: All moneys received by any person from assessments levied under the authority of this chapter or otherwise received by the commission shall be deposited in banks designated by the commission and shall be disbursed by order of the commission through an agent or agents designated for that purpose. Any authorized agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in the state, in favor of the commission, in the amount of not less than twenty-five thousand dollars ($25,000).

article: 3. The California Blueberry Commission


text: The state shall not be liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission shall be limited to the funds collected by the commission. No member, alternate member, or any employee or agent of the commission, shall be personally liable on the contracts of the commission and no member, alternate member, or employee of the commission shall be responsible individually in any way to any producer, handler, or any other person for error in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or alternate member shall be held responsible individually for any act or omission of any member or alternate member of the commission. The liability of the members and alternate members shall be several and not joint, and no member or alternate member shall be liable for the default of any other member or alternate member.

article: 3. The California Blueberry Commission


text:
The powers and duties of the commission shall include, but are not limited to, all of the following:

(a) Adopt and from time to time alter, rescind, modify, and amend bylaws, rules, regulations, and orders for carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, or order of the commission. These actions shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

(b) Administer and enforce this chapter and perform all acts and exercise all powers incidental to, or in connection with, or determined reasonably necessary for, proper or advisable effectuation of the purposes of this chapter.

(c) Appoint its own officers, including a chairperson, one or more vice chairpersons, and any other officers as it determines necessary. The officers shall have the powers and duties delegated to them by the commission.

(d) Employ a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including legal counsel, necessary to carry out this chapter. The commission may retain a management firm or staff from any board, commission, or committee of the state to perform the functions prescribed by this subdivision under control of the commission. If the person engages in any conduct that the secretary determines is not in the public interest or in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective, and if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.

(e) Fix the compensation for all employees of the commission.

(f) Appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.

(g) Establish offices and incur expenses, invest funds, enter into contracts and agreements, and create liabilities and borrow funds in advance of receipt of assessments as determined necessary by the commission for the proper administration and enforcement of this chapter and the performance of its duties.

(h) Keep accurate books, records, and accounts of all of its dealings, which books, records, and accounts shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. The audit shall be made a part of an annual report to all producers and handlers of blueberries, and copies of the audit shall be submitted to the Legislature and the department. In addition, the secretary may, as he or she determines necessary, conduct, or cause to be conducted, a fiscal and compliance audit of the commission.

(i) Promote the sale of blueberries by advertising and any other promotional means, including cost-sharing advertising, for the purpose of maintaining and expanding present markets and creating new and larger intrastate, interstate, and foreign markets for blueberries, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of blueberries.

(j) Educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling blueberries, make market surveys and analyses, and present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the marketing of blueberries.

(k) Make, in the name of the commission, contracts to render service in formulating and conducting plans and programs, and any other contracts or agreements the commission determines necessary for the promotion of blueberries.

(l) Conduct, and contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere with respect to cultural and production practices, good agricultural practices, and marketing and distribution of blueberries. In connection with the research, the commission shall have the power to accept contributions of, or to match, private, state, or federal funds that may be available for these purposes, and to employ or make contributions of funds to other persons or state or federal agencies conducting the research.

(m) Collect information and publish and distribute to producers and handlers a bulletin or other communication for dissemination of information, including, but not limited to, crop statistics relating to the blueberry industry.

(n) Establish an assessment rate to defray operating costs of the commission.

(o) Establish an annual budget according to accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to subdivision (e).

(p) Submit to the secretary for his or her concurrence, an annual statement of contemplated activities authorized under this chapter.

(q) Investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.

(r) Administer any program authorized in Article 9 (commencing with Section 79301).

(s) Prescribe the form and manner by which proponents and opponents of the commission may contact producers and handlers so long as all expenses associated with the contacts are paid in advance.

(t) Develop and promote good agricultural practices and other food safety practices for the production of blueberries.

article: 4. Powers and Duties of the Commission

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 26. California Blueberry Commission > 4. Powers and Duties of the Commission


text:
(a) To prevent unfair trade practices which are detrimental to California’s blueberry industry, including, but not limited to, deception and misinformation, the commission shall collect and disseminate to any and all interested persons, handler f.o.b. (free on board), market price information based on sales that have occurred.

(b) The identity of each handler reporting information and the information reported under this section shall be kept confidential and not made public under any circumstances. Information that gives industry totals, averages, and other similar data may be disclosed by the commission.

(c) The procedure for the collection and dissemination of the information pursuant to this section shall be approved by the secretary.

article: 4. Powers and Duties of the Commission


text:
(a) Within 15 days after the effective date of this chapter, the secretary shall establish a list of producers and handlers eligible to vote on the implementation of this chapter. In establishing the list, the secretary shall require that producers and handlers of blueberries in California submit the names, mailing addresses, and the volume of blueberries produced by each producer and handled by each handler during the preceding marketing season. The request for the information shall be in writing. The information shall be filed within 10 days following receipt of the written request for information.

(b) Any producer or handler of blueberries whose name does not appear upon the secretary’s list may have his or her name placed on the list by filing with the secretary a signed statement identifying himself or herself as a producer or handler. Failure to be on the list does not exempt the producer or handler from paying assessments under this chapter.

article: 5. Implementation and Voting Procedures

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 26. California Blueberry Commission > 5. Implementation and Voting Procedures


text:
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds the following in a referendum vote conducted by the secretary:

(a) At least 40 percent of the total number of producers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:

(1) Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting produced a majority of the total quantity of blueberries produced in the preceding marketing season by all of the producers voting in the referendum.

(2) A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting produced 65 percent or more of the total quantity of blueberries produced in the preceding marketing season by all of the producers voting in the referendum.

(b) At least 40 percent of the total number of handlers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:

(1) Sixty-five percent of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled a majority of the total quantity of blueberries handled in the preceding marketing season by all of the handlers voting in the referendum.

(2) A majority of the handlers who voted in the referendum voted in favor of this chapter, and the handlers so voting handled 65 percent or more of the total quantity of blueberries handled in the preceding marketing season by all of the handlers voting in the referendum.

article: 5. Implementation and Voting Procedures


text: The secretary shall establish a period in which to conduct the referendum which shall not be less than 10 days or more than 60 days in duration and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.

article: 5. Implementation and Voting Procedures


text: Nonreceipt of a ballot shall not invalidate a referendum.

article: 5. Implementation and Voting Procedures


text: If the secretary finds that a favorable vote has been given as provided in Section 79262, he or she shall so certify and give notice of the vote to all producers and handlers whose names and addresses are on file with the secretary.

article: 5. Implementation and Voting Procedures


text: If the secretary finds that a favorable vote has not been given as provided in this article, he or she shall so certify and declare this chapter inoperative. The secretary may conduct another implementation referendum vote one or more years after the previous vote has been taken.

article: 5. Implementation and Voting Procedures


text:
(a) Upon certification of the commission, the secretary shall contact all producers and handlers in a manner determined by the secretary for the purpose of nominating and electing persons to the commission. To be eligible for election to the commission, nominees shall present to the secretary a nomination petition with the signatures of at least three eligible persons.

(b) Subsequent to the first selection of members of the commission, persons to be elected to the commission shall be selected pursuant to nomination and election procedures established by the commission with the concurrence of the secretary.

article: 5. Implementation and Voting Procedures


text: Prior to the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary an amount of funds determined necessary by the secretary to defray the expenses of preparing the necessary lists and information and conducting the vote. Any funds not used for this purpose shall be returned to the proponents of the commission who deposited the funds with the secretary. Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary and for any legal expenses and costs incurred in establishing the commission.

article: 5. Implementation and Voting Procedures


text:
(a) The commission shall, not later than March 1, 2010, or as soon thereafter as possible, establish the assessment to be paid by the producers and handlers for the marketing season. Thereafter, the commission shall, not later than October 1 of each year, or as soon thereafter as possible, establish the assessment to be paid by the producers and handlers for the marketing season. The assessment shall not be more than two and one-half cents ($0.025) per pound for blueberries handled. Of the assessment one-half shall be assessed to producers, and one-half shall be assessed to handlers.

(b) An assessment greater than the amounts in this section may not be charged unless it is approved in accordance with the voting requirements of Section 79262.

history: (History: Amended by Stats. 2010, Ch. 365, Sec. 8. (AB 1795) Effective January 1, 2011.)

article: 6. Assessments and Records

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 26. California Blueberry Commission > 6. Assessments and Records


text: This chapter does not apply to blueberries produced only for a producer’s home use or to blueberries that are used only for ornamental purposes.

article: 6. Assessments and Records


text: Every person who handles blueberries shall keep a complete and accurate record of all blueberries handled by him or her with the name of the producer whose blueberries were handled. A producer who delivers or markets blueberries to persons other than to a handler shall keep a complete and accurate record of all those blueberries. The records shall contain information required by the commission. The records shall be preserved by the producer or handler for a period of two years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.

article: 6. Assessments and Records


text:
(a) All proprietary information obtained by the commission or the secretary from any source, including the names and addresses of producers and handlers, shall be confidential and shall not be disclosed except when required by court order in a judicial proceeding.

(b) Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission.

article: 6. Assessments and Records


text: The first handler of blueberries being assessed shall deduct the assessment from amounts paid by him or her to the producer, and shall be a trustee of the funds until they are paid to the commission at the time and in the manner prescribed by the commission. A producer who handles blueberries shall pay an assessment directly to the commission at the time and in the manner prescribed by the commission.

article: 6. Assessments and Records


text: Every handler shall be personally liable for the payment of the collected assessments from producers, and failure to collect the assessment from any producer shall not exempt the handler from liability.

article: 6. Assessments and Records


text: Any assessment that is levied as provided in this chapter is a personal debt of every producer and handler so assessed.

article: 6. Assessments and Records


text:
(a) Any person who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be past due and, in addition, interest on the unpaid balance at the rate of 1.5 percent per month.

(b) In addition to any other penalty imposed, the commission may require any person who fails to pay any assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount and for a period of time specified by the commission as assurance that all payments to the commission will be made when due.

article: 6. Assessments and Records


text:
A civil penalty not exceeding one thousand dollars ($1,000) may be levied by the commission upon a person who does any of the following:

(a) Willfully to render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of blueberries in order to avoid payment of assessments on the product’s highest value.

(b) Fail to render or furnish a report, statement, or record required by the commission.

(c) When engaged in the shipping or processing of blueberries or in the wholesale or retail trade of blueberries, to fail or refuse to furnish to the commission or its duly authorized agents, upon request, information concerning the name and address of the persons from whom he or she has received blueberries and the quantity so received.

(d) Secrete, destroy, or alter records required to be kept by this chapter.

article: 7. Actions and Penalties

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 26. California Blueberry Commission > 7. Actions and Penalties


text: The commission shall establish procedures for the purpose of according individuals aggrieved by its actions or determinations an informal hearing before the commission, or before a committee of the commission designated for this purpose. Appeals from decisions of the commission may be made to the secretary. The determination of the secretary shall be subject to judicial review upon petition filed with the appropriate superior court.

article: 7. Actions and Penalties


text:
(a) The commission may commence civil actions and utilize all remedies provided in law or equity for the collection of assessments and civil penalties, and for obtaining injunctive relief or specific performance, relating to this chapter and the rules and regulations adopted under this chapter. A court shall issue to the commission any requested writ of attachment or injunctive relief upon a prima facie showing by verified complaint that a named defendant has violated this chapter or any other rule or regulation of the commission, including, but not limited to, the nonpayment of assessments. No bond shall be required to be posted by the commission as a condition for the issuance of any writ of attachment or injunctive relief.

(b) A writ of attachment shall be issued pursuant to Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure, except that the showing specified in Section 485.010 is not required. Injunctive relief shall be issued pursuant to Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the showing of irreparable harm or of inadequate remedy at law specified by Section 526 or 527 is not required.

(c) Upon entry of any final judgment on behalf of the commission against any defendant, the court shall enjoin the defendant from conducting any type of business regarding blueberries until there is full compliance with, and satisfaction of, the judgment.

(d) Upon a favorable judgment for the commission, the court may order that the commission be reimbursed for reasonable attorney’s fees and other actual related costs. Venue for these actions is at the domicile or place of business of the defendant or in the county of the principal office of the commission. The commission may be sued only in the county of its principal office.

article: 7. Actions and Penalties


text: Any action by the commission for any penalty or other remedy that is prescribed under this chapter shall be commenced within two years from the date of discovery of the alleged violation. Any action against the commission by any person shall be commenced within two years from the date of the alleged violation.

article: 7. Actions and Penalties


text: The commission is not required to allege or prove that an adequate remedy at law does not exist in any action brought under this chapter.

article: 7. Actions and Penalties


text: This chapter shall be liberally construed. If any section, clause, or part of this chapter is for any reason held unconstitutional or invalid as applied to any person or as applied under certain circumstances, that decision shall not affect the remaining portions of this chapter or the application of this chapter to any other persons or under any other circumstance.

article: 7. Actions and Penalties


text: The termination of this chapter shall not affect or waive any right, duty, obligation, or liability that has arisen or that may thereafter arise in connection with this chapter, release or extinguish any violation of this chapter, or affect or impair any right or remedies of the commission with respect to any violation.

article: 7. Actions and Penalties


text:
(a) Five years after implementation of this chapter, the secretary shall hold a public hearing, after providing proper notice to all persons subject to this chapter and any other persons or entities who have requested, in writing, notice of the hearing, to determine whether the operation of this chapter should be continued. If the secretary finds after the hearing that a substantial question exists among the persons assessed under this chapter regarding whether the operation of this chapter should be continued, the secretary shall submit the chapter to a reapproval referendum to be conducted among producers and handlers to determine whether the operation of this chapter shall be reapproved and continued in effect.

(b) If the secretary finds after conducting a hearing that no substantial question exists or, if a reapproval referendum is required, that a majority of the eligible producers and a majority of eligible handlers voting in the referendum voted in favor of continuing the operation of this chapter, the secretary shall so certify and this chapter shall remain operative. If the secretary finds that a favorable vote has not been given, he or she shall so certify and declare the operation of this chapter and the commission suspended upon the expiration of the current marketing season. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 79294. No bond or security shall be required for any such referendum.

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 26. California Blueberry Commission > 8. Continuation or Suspension and Termination


text: Following a hearing, and favorable referendum if required, the process specified in Section 79291 shall be conducted by the secretary every five years thereafter between October 1 and September 30, unless a referendum is conducted as the result of a petition pursuant to Section 79293. In that case, the hearing, and referendum if required, shall be conducted every five years following the industry petitioned referendum.

history: (History: Amended by Stats. 2010, Ch. 365, Sec. 9. (AB 1795) Effective January 1, 2011.)

article: 8. Continuation or Suspension and Termination


text:
(a) Upon a finding by a two-thirds vote of the commission that the operation of this chapter has not tended to effectuate its declared purposes, the commission may recommend to the secretary that the commission be suspended. Any suspension shall not become effective until the expiration of the current marketing season.

(b) The secretary shall, upon receipt of a recommendation, or may, after a public hearing to review a petition filed with him or her requesting such suspension, signed by 15 percent of the producers by number who produced not less than 15 percent of the volume in the immediately preceding marketing season and 15 percent of the handlers by number who handled not less than 15 percent of the volume in the immediately preceding marketing season, cause a referendum to be conducted among the listed producers and handlers to determine if the operations of the commission shall be suspended. However, the secretary shall not hold a referendum as a result of the petition unless the petitioner shows by the weight of evidence that this chapter has not effectuated its declared purposes.

(c) The secretary shall establish a referendum period, which shall not be less than 10 days or more than 60 days in duration. The secretary may prescribe additional procedures necessary to conduct the referendum. At the close of the established referendum period, the secretary shall tabulate the ballots filed during the period. The secretary shall suspend the operation of this chapter, if the secretary finds the following:

(1) At least 40 percent of the total number of producers from the list established by the secretary participate, and that either of the following occurs:

(A) Sixty-five percent of the producers who voted in the referendum voted in favor of suspension, and the producers so voting produced a majority of the total quantity of blueberries produced in the preceding marketing season by all of the producers voting in the referendum.

(B) A majority of the producers who voted in the referendum voted in favor of suspension, and the producers so voting produced 65 percent or more of the total quantity of blueberries produced in the preceding marketing season by all of the producers voting in the referendum.

(2) At least 40 percent of the total number of handlers from the list established by the secretary participate, and that either of the following occurs:

(A) Sixty-five percent of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled a majority of the total quantity of blueberries handled in the preceding marketing season by all of the handlers voting in the referendum.

(B) A majority of the handlers who voted in the referendum voted in favor of suspension, and the handlers so voting handled 65 percent or more of the total quantity of blueberries handled in the preceding marketing season by all of the handlers voting in the referendum.


text: After the effective date of suspension of this chapter and of the commission, the operations of the commission shall be concluded and all moneys held by the commission, and moneys collected by assessment and not required to defray the expenses of concluding and terminating operations of the commission, shall be returned upon a pro rata basis to all persons from whom assessments were collected in the immediately preceding current marketing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the pro rata refund to those persons, any moneys remaining and any moneys remaining after payment of all expenses of winding up and terminating operations shall be withdrawn from the approved depository and paid into an appropriate state or federal program or used to fund activities related to the subject matter of this chapter.


text: Upon suspension of the operation of this chapter and of the commission, the commission shall mail a copy of the notice of suspension to all producers and handlers affected by the suspension whose names and addresses are on file.


text: The commission may recommend to the secretary that he or she adopt blueberry quality standards, product labeling, or engage in any other activity authorized pursuant to the California Marketing Act of 1937 (Chapter 1 (commencing with Section 58601) of Part 2 of Division 21). The adoption of standards or any of these activities shall be in accordance with the procedures specified in that act unless otherwise specified in this article.

article: 9. Quality Standards

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 26. California Blueberry Commission > 9. Quality Standards


text: Any activity recommended by the commission shall not become operative until approved in the manner specified in Section 79262.

article: 9. Quality Standards


text: Any activity adopted pursuant to this article shall be implemented by the secretary at the beginning of the marketing season next succeeding the date on which the activity is approved by the secretary.

article: 9. Quality Standards


text: The commission shall serve as the advisory body to the secretary on all matters pertaining to this article.

article: 9. Quality Standards


text: The production of nursery products constitutes an important industry of this state that provides substantial and necessary revenues for the state, products that are a foundation for its residents’ food supply, and employment for its residents.

history: (History: Added by Stats. 2010, Ch. 605, Sec. 1. (AB 2695) Effective January 1, 2011.)

article: 1. Declaration and General Provisions

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 27. California Nursery Producers Commission > 1. Declaration and General Provisions


text: The maintenance of the nursery industry of California is necessary to assure the public and the state’s and nation’s crop agriculture industry of a continuous supply of vital nursery products and the maintenance of needed levels of income for those engaged in the nursery industry and in its supplier, distribution, and related service chain.

chapter: 27. California Nursery Producers Commission

article: 1. Declaration and General Provisions


text: The production of nursery products in California is currently the state’s number two agricultural crop with 2008 farm gate sales of four billion dollars ($4,000,000,000) and has the potential to become the leading segment of the state’s agricultural industry. To realize this potential, there is a need to engage in research beneficial to the industry, to educate the public relative to nursery products, and to promote and market nursery products. The activities made possible by the establishment of the commission will meet these needs and further the interests of the industry and the state.

article: 1. Declaration and General Provisions


text: The nursery industry has been negatively impacted by invasive pests and diseases that also adversely affect the state’s environment, urban quality, and agricultural production. The activities authorized by this commission will improve the quality of nursery products and limit these negative impacts.

article: 1. Declaration and General Provisions


text: The establishment of the commission is necessary for the efficient development and management of a research, public education, and marketing program that will enhance the reputation of the California nursery industry, create a more receptive environment for the industry and its products, aid its growth at both wholesale and retail, and increase competitiveness of the California nursery industry within the national and international marketplace. In addition, the commission is necessary to carry out the California nursery industry’s commitment to responsible stewardship, environmental protection, and increasingly efficient cultural practices.

article: 1. Declaration and General Provisions


text:
(a) The Legislature finds and declares that the commission is intended to operate in conjunction with other nursery-related laws and programs in the state, including, but not limited to, the licensing laws and regulations applicable to nurseries (Chapter 1 (commencing with Section 6701) of Part 3 of Division 4), the inspection and cleanliness laws applicable to nurseries (Article 1 (commencing with Section 6901) of Chapter 2 of Part 3 of Division 4), the shipment and pest certification laws applicable to nurseries (Article 2 (commencing with Section 6921) and Article 4 (commencing with Section 6961) of Chapter 2 of Part 3 of Division 4), the grades and standards laws and regulations applicable to nurseries (Chapter 5 (commencing with Section 53301) of Division 18), and specific nursery stock programs such as the California Grape Rootstock Improvement Commission (Chapter 12.6 (commencing with Section 74701)).

(b) The legislature finds and declares that the commission enhances the existing comprehensive statutory and regulatory structure affecting all aspects of nursery products production in California.

(c) The commission shall periodically meet and confer with all other nursery-related programs administered by the department to ensure coordination of policies and programs.

article: 1. Declaration and General Provisions


text: The Legislature further finds and declares that the programs specified in Section 79406, including this commission, greatly benefit the nursery industry, and as such, advance the interests of the State of California by providing substantial employment for the state’s citizens, producing needed tax and fee revenues for the support of state and local government, encouraging responsible stewardship of valuable agricultural resources and the environment, and producing substantial quantities of nursery products for the state, nation, and world.

article: 1. Declaration and General Provisions


text: The successes that the nursery industry of California has achieved have resulted from a commitment to industry-funded research that has led to significant improvements in the quality and quantity of the nursery products available to consumers and increasingly more efficient and environmentally protective cultural practices. The establishment of the commission will continue and enhance this research effort and move the nursery industry toward its potential, resulting in increased consumer value and enhanced grower returns.

article: 1. Declaration and General Provisions


text: The production of nursery products in this state is hereby declared to be affected with a public interest. This chapter is enacted in the exercise of the police power of this state for the purposes of protecting the health, peace, safety, and general welfare of the people of this state.

article: 1. Declaration and General Provisions


text: Opportunity exists for continued growth and expansion of the nursery industry by creating new markets. The success of such an expansion program is uniquely dependent upon effective research and public education, since the creation of new markets is essentially a matter of educating and informing people of the use, value, and availability of nursery products and enhancing the reputation of the California nursery products industry. The expansion of the nursery industry also provides an important and expanding source of jobs for many people in this state, including many residing in historically depressed areas of the state, and it serves to ensure the preservation of an agrarian society. The expansion also provides pathways for the unemployed, the poor, unskilled laborers, rehabilitated inmates, and other disadvantaged groups to learn valuable professional nursery skills and obtain seasonal or permanent employment with career potential.

article: 1. Declaration and General Provisions


text: The commission’s activities are necessary for the efficient development of a national and international program and exists as an integral part of a broader framework of state and federal statutes and regulations designed to: collectively enhance the quality and reputation of California nursery products; create a more receptive environment for nursery products; improve the capability of nursery products producers to function within the overall regulatory environment; increase the competitiveness of the nursery products industry within the national and international marketplace; implement the industry’s commitment to responsible stewardship of agricultural land and the environment and increasingly efficient cultural practices; and further the goals and interests of the state by preserving the economic well-being of the agricultural economy.

article: 1. Declaration and General Provisions


text: The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of nursery products the opportunity to avail themselves of the benefits of collective action in the broad fields of research, education, and the development, maintenance, and expansion of markets.

article: 1. Declaration and General Provisions


text: No action taken by the commission, or by any individual in accordance with this chapter or with the regulations adopted under this chapter, is a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or any statutory or common law against monopolies or combinations in restraint of trade. The Legislature intends this program to be among those contemplated by the United States Congress in the enactment of Section 610(i) of Title 7 of the United States Code.

article: 1. Declaration and General Provisions


text: It is hereby declared as a matter of legislative determination that commission members and alternates are intended to represent and further the interest of a particular industry concerned and that this representation and furtherance is intended to serve a public interest. Accordingly, the Legislature finds that with respect to persons who are elected or appointed to the commission, the particular industry concerned is tantamount to and constitutes the public generally within the meaning of Section 87103 of the Government Code.

article: 1. Declaration and General Provisions


text: Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.

article: 2. Definitions

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text: “Books and records” means books, records, contracts, documents, memoranda, papers, correspondence, or other written data pertaining to matters relating to the activities subject to this chapter.

article: 2. Definitions


text: “Commission” means the California Nursery Producers Commission.

article: 2. Definitions


text: “Department” means the Department of Food and Agriculture.

article: 2. Definitions


text:
(a) “Districts” consists of the following:

(1) District 1, which includes the Counties of Imperial, Orange, and San Diego.

(2) District 2, which includes the Counties of Inyo, Kern, Kings, Los Angeles, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, Tulare, and Ventura.

(3) District 3, which includes the Counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Fresno, Glenn, Humboldt, Lake, Lassen, Madera, Marin, Mariposa, Mendocino, Merced, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba.

(b) Notwithstanding subdivision (a), the boundaries of any district may be changed by a two-thirds vote of the members of the commission, which is concurred in by the secretary, when necessary to maintain similar total production among the districts and to ensure proper representation. These boundaries need not coincide with county lines.

article: 2. Definitions


text: “Ex officio member” means a nonvoting member of the commission.

article: 2. Definitions


text: “Market” or “marketing” means to sell nursery products to a person other than another producer.

article: 2. Definitions


text: “Marketing season” or “fiscal year” are synonymous terms and mean the period beginning May 1 of any year and extending through April 30 of the following year.

article: 2. Definitions


text: “Person” means any individual, partnership, corporation, limited liability company or partnership, firm, company, or other entity doing business in California.

article: 2. Definitions


text: “Producer” means any person that operates under a California state nursery license (producer category), and that produces, or causes to be produced, nursery products for the purposes of transferring title to another person. “Producer” does not include a licensed producer nursery that produced and sold nursery products for a gross dollar value of less than two million five hundred thousand dollars ($2,500,000) in the preceding marketing season.

article: 2. Definitions


text: “Nursery products” means any plant for planting, propagation, or ornamentation, but does not include flowers as defined in Section 77911 or grape rootstock as defined in Section 74718.

article: 2. Definitions


text: “Research” means any research relating to invasive pests, the production, harvest, postharvest handling, or marketing of nursery products, nursery product components, or practices employed by nurseries, and research relating to public education regarding nurseries and nursery products, including, but not limited to, basic and applied research.

article: 2. Definitions


text: “Secretary” means the Secretary of Food and Agriculture.

article: 2. Definitions


text: “Sell” or “sold” means to transfer or cause the transfer of title to nursery products for valuable consideration.

article: 2. Definitions


text:
(a) There is in the state government the California Nursery Producers Commission. The commission shall be composed of 14 producers nominated and elected by and from producers, and one public member.

(b) Eligible persons from within the respective districts shall elect four producers from District 1, four producers from District 2, and four producers from District 3. All eligible persons shall elect two members at large.

(c) The public member shall be appointed to the commission by the secretary from nominees recommended by the commission.

(d) The secretary and other appropriate individuals, as determined by the commission, shall be ex officio members of the commission.

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 27. California Nursery Producers Commission > 3. California Nursery Producers Commission


text:
(a) The secretary may require the commission to correct or cease any existing activity or function that is determined by the secretary not to be in the public interest or that is in violation of this chapter.

(b) If the commission refuses or fails to cease those activities or functions or to make the corrections as required by the secretary, the secretary may, upon written notice, suspend all or a portion of the activities or functions of the commission until the time that the cessation or correction of activities or functions as required by the secretary has been accomplished by the commission.

(c) Actions of the commission in violation of the written notice are without legal force or effect. The secretary, to the extent feasible, shall issue the written notice prior to the commission entering into any contractual relationship affecting the existing or proposed activities or functions that are the subject of the written notice.

(d) Upon service of the written notice, the secretary shall notify the commission in writing of the specific acts that the secretary determines are not in the public interest or are in violation of this chapter, his or her reasons for requiring a cessation or correction of specific existing or proposed activities or functions, and recommendations that will make the activities or functions acceptable.

article: 3. California Nursery Producers Commission


text: When the secretary is required to concur in a decision of the commission, the secretary shall give his or her response to the commission within 15 working days from notification of the decision. The secretary shall set forth in writing with specificity the reasons for any refusal to concur. The secretary’s response may be a requirement that additional information be provided.


text: The commission shall reimburse the secretary for all expenditures incurred by the secretary in carrying out his or her duties and responsibilities pursuant to this chapter. However, a court may, if it finds that the secretary acted arbitrarily or capriciously in restricting the activities or functions of the commission, relieve the commission of the responsibility for payment of the secretary’s legal costs with regard to that action.


text: Except for ex officio members, an alternate for each member shall be nominated and elected, and for the public member appointed, in the same manner as the member. An alternate shall, in the absence of the member for whom he or she is an alternate, serve in place of the member and shall have, and be able to exercise, all the rights, privileges, and powers of the member when serving on the commission. In the event of a change in status making a member ineligible to serve, or due to death, removal, resignation, or disqualification of a member, the alternate shall act as a member of the commission for the unexpired portion of the term.


text: Except as provided in Section 79441, any vacancy on the commission occurring by the failure of any person elected to or serving on the commission as an alternate to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, or resignation, shall be filled by another eligible person for the unexpired portion of the term by a majority vote of the members of the commission. The person shall fulfill all the qualifications set forth in this article as required for the person whose office he or she is to occupy.


text: Any vacancy on the commission occurring by the failure of the public member to continue in his or her position due to a change in status making him or her ineligible to serve, or due to death, removal, resignation, or disqualification, may be filled upon appointment by the secretary, from nominees recommended by the commission, of another eligible person for the unexpired portion of the term. The person shall fulfill all the qualifications set forth in this article as required for the member whose office he or she is to occupy.


text: Any producer member and his or her alternate on the commission shall be an individual producer or an employee or representative of a producer that has a financial interest in producing nursery products or causing nursery products to be produced. The qualifications of producer members and their alternates shall be maintained during their entire term of office. The absence of any producer member from two consecutive meetings or lapse in qualifications shall be grounds for the commission to declare the seat vacant.


text: The public member and his or her alternate shall not have any financial interest in the nursery industry. The public member and his or her alternate shall have all the powers, rights, and privileges of any other member or alternate, respectively, on the commission, except that the public member and his or her alternate member shall not have a vote on issues regarding the assessments established pursuant to Article 6 (commencing with Section 79501).


text: Commission members and alternates shall serve three-year terms and until their successors are elected, and qualified, except, that of the first members of the commission, one-third shall serve one year, one-third shall serve two years, and one-third shall serve three years. The determination of the term of each member shall be made by lot. The public member and his or her alternate shall serve three-year terms and until their successors are appointed and qualified.


text: The commission may sue and be sued regarding any matter related to the purposes of this chapter and contract and be contracted with.


text: A majority of the members of the commission shall constitute a quorum of the commission for the transaction of business. The vote of a majority of the members present at a meeting at which there is a quorum constitutes the act of the commission. The commission may continue to transact business at a meeting at which a quorum is initially present, notwithstanding the withdrawal of members, provided any action is approved by the requisite majority of the required quorum.


text: The secretary or his or her representatives shall be notified and may attend each meeting of the commission and any committee meetings of the commission. However, the secretary or his or her representative is not entitled to attend an executive session of the commission or a committee of the commission called for the purpose of discussing potential or actual litigation against the department.


text: No member or alternate of the commission or member of a committee established by the commission who is a nonmember of the commission shall receive a salary. Each member of the commission and each alternate serving in place of a member, except ex officio members who are officers or employees of a public agency, and each member of a committee established by the commission who is a nonmember of the commission, may receive reasonable and necessary traveling expenses and meal allowances as approved by the commission for each day spent in actual attendance at, or in traveling to and from, meetings of the commission or committees of the commission, or on special assignment for the commission.


text: All funds received by any person from the assessments levied under this chapter or otherwise received by the commission shall be deposited in banks that the commission may designate and shall be disbursed by order of the commission through an agent or agents as it may designate for that purpose. The agent or agents shall be bonded by a fidelity bond, executed by a surety company authorized to transact business in this state, in favor of the commission, in an amount of not less than twenty-five thousand dollars ($25,000).


text: The state is not liable for the acts of the commission or its contracts. Payments of all claims arising by reason of the administration of this chapter or acts of the commission are limited to the funds collected by the commission. No member or alternate of the commission, or any employee or agent thereof, is personally liable for the contracts or other liabilities of the commission. No member or alternate of the commission, or any employee or agent thereof, is responsible individually in any way to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, or employee, except for his or her own individual acts of dishonesty or crime. No member or alternate of the commission, or any employee or agent thereof, is responsible individually for any act or omission of any other member or alternate of the commission, or any employee or agent thereof. No member or alternate of the commission, or any employee or agent thereof, is liable for the default of any other member or alternate of the commission, or any employee or agent thereof.


text: The powers and duties of the commission shall include, but are not limited to, all of those contained in this article.

article: 4. Powers and Duties

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 27. California Nursery Producers Commission > 4. Powers and Duties


text: The commission may adopt and from time to time alter, rescind, modify, and amend all proper and necessary bylaws, rules, regulations, and orders in accordance with commission procedures for purposes of carrying out this chapter, including rules for appeals from any bylaw, rule, regulation, operating procedure, or order of the commission. These actions of the commission shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

article: 4. Powers and Duties


text: The commission may administer and enforce this chapter and do and perform all acts and exercise all powers incidental to, or in connection with, or deemed reasonably necessary for, proper or advisable effectuation of the purposes of this chapter.

article: 4. Powers and Duties


text: The commission may appoint its own officers, including a chairperson, one or more vice chairpersons, and other officers as it deems necessary. The officers have the powers and duties delegated to them by the commission.

article: 4. Powers and Duties


text:
(a) The commission may employ a person to serve at the pleasure of the commission as president of the commission, and other personnel, including legal counsel of its choice, necessary to carry out this chapter. If any person employed by the commission engages in any conduct that the secretary determines is not in the public interest or that is in violation of this chapter, the secretary shall notify the commission of the conduct and request that corrective and, if appropriate, disciplinary action, be taken by the commission. If the commission fails or refuses to correct the situation or to take disciplinary action satisfactory to the secretary, the secretary may suspend or discharge the person.

(b) The commission may retain a management firm or the staff from any board, commission, or committee of the state or federal government to perform the functions prescribed by this section under the direction of the commission.

(c) If requested by an advisory board, board of directors, or any authorized agent, the commission may administer any governmental program related to the nursery products industry.

article: 4. Powers and Duties


text: The commission may fix the compensation for all employees of the commission.

article: 4. Powers and Duties


text: The commission may appoint committees composed of both members and nonmembers of the commission to advise the commission in carrying out this chapter.

article: 4. Powers and Duties


text: The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, develop, own, and control the use of any intellectual property, and borrow funds in advance of receipt of assessments as may be necessary in the opinion of the commission for the proper administration and enforcement of this chapter and the performance of its duties.

article: 4. Powers and Duties


text: The commission shall keep accurate books, records, and accounts of all of its dealings, which shall be subject to an annual audit by an auditing firm selected by the commission with the concurrence of the secretary. A summary of the audit shall be reported to all persons subject to this chapter, a copy of which shall also be submitted to the department. In addition, the secretary, as he or she determines necessary, may conduct or cause to be conducted a fiscal and compliance audit of the commission. Except in the first year of operation, the commission shall prepare and make available an annual report within 90 days of the beginning of the fiscal year of all activities and the financial status of the commission to all persons subject to this chapter.

article: 4. Powers and Duties


text: The commission may present facts to, and negotiate with, local, state, federal, and foreign agencies and governments on matters that affect the California nursery industry, including, but not limited to, the maintenance and expansion of present markets, the creation of new and larger markets for nursery products, invasive pest issues, plant health, interstate and foreign export requirements, registration of pesticides, actions applicable to the state and federal environmental laws and regulations, applicable governmental regulations and statutes, and international trade agreements.

article: 4. Powers and Duties


text: The commission may conduct outreach, advertise, and educate and instruct the public and the retail and wholesale trade with respect to the quality, features, uses, and value of nursery products and the practices and methods of production used by nurseries.

article: 4. Powers and Duties


text: The commission may conduct outreach and educate and instruct the wholesale and retail trade, including, but not limited to, their physical and electronic channels of distribution to markets with respect to proper methods of handling and selling nursery products, and conduct consumer, trade, and trading partner surveys and analyses.

article: 4. Powers and Duties


text: The commission may conduct, and contract with others to conduct, research, including the study, analysis, dissemination, and accumulation of information obtained directly or from research or elsewhere, with respect to cultural, production and postharvest practices, and the sourcing, marketing and distribution of nursery products. The results of any research conducted by or on behalf of the commission may be used by the commission in any way it deems appropriate.

article: 4. Powers and Duties


text: The commission may contract to receive and render services in formulating and conducting plans and programs and enter into any other contracts or agreements that the commission deems necessary to carry out this chapter.

article: 4. Powers and Duties


text: The commission may accept contributions of, or match private, state, or federal funds, and employ or make contributions of funds to other persons or local, state, or federal agencies for proper or advisable effectuation of the purposes of this chapter.

article: 4. Powers and Duties


text: In its discretion, the commission may cooperate with or provide funding to other private or governmental entities in the resolution of emergencies arising in the industry and impacting the health and safety of the public or to maintain the continued stability and reputation of the nursery industry.

article: 4. Powers and Duties


text: The commission may collect information, including, but not limited to, industry crop statistics, identity and size of markets, and trading partners, and publish and distribute without charge, a bulletin or other communication to producers of nursery products.

article: 4. Powers and Duties


text: The commission shall establish an assessment rate to be paid by producers to defray operating costs of the commission.

article: 4. Powers and Duties


text: The commission shall establish an annual budget according to generally accepted accounting practices. The budget shall be concurred in by the secretary prior to disbursement of funds, except for disbursements made pursuant to Section 79466.

article: 4. Powers and Duties


text: The commission shall submit to the secretary for his or her concurrence an annual statement of contemplated activities authorized pursuant to this chapter.

article: 4. Powers and Duties


text: The commission may investigate and prosecute civil violations of this chapter and file complaints with appropriate law enforcement agencies or officers for suspected criminal violations of this chapter.

article: 4. Powers and Duties


text: The commission may appoint any person to serve as an ex officio member.

article: 4. Powers and Duties


text:
(a) Within 60 days of a request from any producer, the secretary shall establish a list of producers eligible to vote on implementation of this chapter. The secretary may require producers to submit the names and mailing addresses of other producers. The secretary also may require that the information provided include information on the value of nursery products produced and sold by each producer or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in this article. The request for the information shall be in writing and shall be filed within 10 days following receipt of the request.

(b) Any producer eligible to vote whose name does not appear on the appropriate list may have his or her name placed on the list by filing with the secretary a signed statement, identifying himself or herself as a person eligible to vote. Failure to be on the list does not exempt the person from providing information requested by the secretary or the commission or from paying assessments and does not invalidate any industry votes conducted pursuant to this article.

(c) Any producer eligible to vote may contact those on the list regarding the referendum in a form and manner prescribed by the secretary if all expenses associated with those contacts are paid in advance. Subsequent to the implementation of this chapter and the establishment of the commission, the commission shall prescribe the form and manner by which eligible producers may contact other eligible producers regarding the administration of this chapter.

article: 5. Implementation and Voting Procedures

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 27. California Nursery Producers Commission > 5. Implementation and Voting Procedures


text:
This chapter, except as necessary to conduct an implementation referendum vote, shall not become operative until the secretary finds, in a referendum vote conducted by the secretary, that at least 40 percent of the total number of producers from the list established by the secretary pursuant to this article participate, and that either of the following occurs:

(a) Sixty-five percent of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed a majority of the total value of nursery products marketed in the preceding marketing season by all of the producers voting in the referendum.

(b) A majority of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting marketed 65 percent or more of the total value of nursery products marketed in the preceding marketing season by all of the producers voting in the referendum.

article: 5. Implementation and Voting Procedures


text: The secretary shall establish a period in which to conduct the referendum, which shall not be less than 10 days or more than 60 days in duration, and may prescribe additional procedures necessary to conduct the referendum. If the initial period established is less than 60 days, the secretary may extend the period. However, the total referendum period may not exceed 60 days.

article: 5. Implementation and Voting Procedures


text: Nonreceipt of a ballot by an eligible producer shall not invalidate a referendum.

article: 5. Implementation and Voting Procedures


text: If the secretary finds that a favorable vote has been given as provided in this article, the secretary shall certify and give notice of the favorable vote to all affected producers whose names and addresses are on file with the secretary.

article: 5. Implementation and Voting Procedures


text: If the secretary finds that a favorable vote has not been given as provided in this article, the secretary shall certify and declare all provisions of this chapter inoperative. The secretary may conduct other implementation referendum votes one year or more after the previous vote has been taken.

article: 5. Implementation and Voting Procedures


text:
(a) Prior to the referendum vote conducted by the secretary pursuant to this article, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses of preparing the necessary lists and information and conducting the vote.

(b) Any funds not used in carrying out this article shall be returned to the proponents of the commission who deposited the funds with the secretary.

(c) Upon establishment of the commission, the commission may reimburse the proponents of the commission for any funds deposited with the secretary that were used in carrying out this article, and for any legal expenses and costs incurred in establishing the commission.

article: 5. Implementation and Voting Procedures


text: Upon certification of the commission, the secretary shall contact all producers by mail or call meetings of producers for the purpose of nominating and electing persons to the commission. All producers on the secretary’s list shall be given written notice of the meetings at least 10 days prior to the meeting date.

article: 5. Implementation and Voting Procedures


text: Subsequent to the first election of members and alternate members of the commission pursuant to this chapter, persons to be elected to the commission shall be selected pursuant to nomination and election procedures established by the commission with the concurrence of the secretary.

article: 5. Implementation and Voting Procedures


text:
(a) The commission shall establish the assessment for the marketing season not later than May 1 of each year, or as soon thereafter as possible. The assessment shall not be more than six-tenths of one cent ($0.006) per dollar of gross sales.

(b) The commission may establish an assessment rate that is different for various classes of trade, including, but not limited to, different rates for retail sales than for wholesale sales, provided that rate does not exceed the maximum assessment authorized in subdivision (a).

article: 6. Assessments and Records

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 27. California Nursery Producers Commission > 6. Assessments and Records


text: This chapter does not apply to nursery products produced only for a producer’s home use unless the use shall constitute a transfer of title between separate business entities held by a single owner.

article: 6. Assessments and Records


text: Any person requesting an exemption from this chapter shall file an affidavit with the commission attesting that he or she is not a producer, as defined in Section 79429, or produces nursery products only for his or her own home use without transfer of title between entities as specified in Section 79502. The affidavit shall contain all the information required by the commission. The commission shall review the affidavit, conduct any additional investigation it deems appropriate, and approve or deny the affidavit.

article: 6. Assessments and Records


text: Every person who produces nursery products for market, whether or not the nursery products are valued at more than the gross dollar value established pursuant to Section 79429, shall keep a complete and accurate record of the nursery products produced and sold and aggregated data on its customers and trading partners classified into statistical summary information in categories prescribed by the commission, and shall submit the records to the commission upon request in the time and manner specified by the commission. The records shall be in simple form and contain the information that the commission prescribes. The records shall be preserved by the person producing nursery products for a period of three years and shall be offered and submitted for inspection at any reasonable time upon written demand of the commission or its duly authorized agent.

article: 6. Assessments and Records


text:
(a) All information obtained by the commission or the secretary from producers and other persons required to keep and submit records pursuant to this article shall be confidential and shall not be disclosed except when required by a court order after a hearing in a judicial proceeding involving this chapter.

(b) In addition, and notwithstanding any other provision of law, all proprietary or trade secret information developed or gathered pursuant to this chapter, including, but not limited to, the names and addresses of persons subject to this chapter, individual quantities produced or sold, prices paid, and the products of research obtained by the commission, or by the department on behalf of the commission, from any source is confidential, shall not be considered a public record as that term is defined in Section 7920.530 of the Government Code, and shall not be disclosed by the commission or the secretary except when required by a court order after a hearing in a judicial proceeding involving this chapter.

(c) Information on volume shipments, crop value, and any other related information that is required for reports to governmental agencies, financial reports to the commission, or aggregate sales and inventory information, and any other information that gives only totals, but excludes individual information, may be disclosed by the commission in its sole discretion.

history: (History: Amended by Stats. 2021, Ch. 615, Sec. 134. (AB 474) Effective January 1, 2022. Operative January 1, 2023, pursuant to Sec. 463 of Stats. 2021, Ch. 615.)

article: 6. Assessments and Records


text: Any assessment that is levied as provided for in this chapter is a personal debt of every person assessed.

article: 6. Assessments and Records


text: Every producer shall be a trustee of the assessments owed to the commission until they are paid to the commission at the time and in the manner prescribed by the commission. Title to the assessments shall pass immediately to the commission upon the sale of nursery products resulting in an assessment, and the producer shall hold the assessments in trust for the benefit of the commission and shall remit them, with assessment reports, in the time and manner specified by the commission.

article: 6. Assessments and Records


text: When the producer is a corporation, limited liability company, general, limited, or limited liability partnership, or trust, all of the directors and officers of the corporation, all of the members and managers of the limited liability company, all of the general and limited partners in the partnership, and all of the trustees of the trust, in their capacity as individuals shall be included, and any liability for violating this chapter, including, but not limited to, failing to pay assessments or file required reports, shall also include identical liability upon each director and officer of the corporation, each member and manager of the limited liability company, each general, limited, and limited liability partner in the partnership, and each trustee of the trust.

article: 6. Assessments and Records


text: Any person who fails to file a return or pay any assessment within the time required by the commission shall pay to the commission a penalty of 10 percent of the amount of the assessment determined to be due, and, in addition, shall pay 1.5 percent interest per month on the unpaid balance.

article: 6. Assessments and Records


text: In addition to any other penalty imposed, the commission may require any person who fails to pay an assessment or related charge pursuant to this article to furnish and maintain a surety bond in a form and amount, and for a period of time, specified by the commission as assurance that all payments to the commission will be made when due.

article: 6. Assessments and Records


text: All violations of this chapter shall be prosecuted in accordance with the provisions of this article and, as appropriate, Sections 79509 and 79510.

article: 7. Violations

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text:
A civil penalty not exceeding one thousand dollars ($1,000) may be levied by the commission upon a person who does any of the following:

(a) Willfully renders or furnishes a false report, statement, or record required by the commission.

(b) Fails to render or furnish a report, statement, or record required by the commission.

(c) Secretes, destroys, or alters records required to be kept under this chapter.

article: 7. Violations