text: On the termination of the council pursuant to this article, the council shall remain in existence until the end of the marketing season then current for the purpose of furnishing the secretary with a complete record of its outstanding financial obligations. The secretary shall pay from the money collected pursuant to Article 7 (commencing with Section 78550) any outstanding obligations and any obligations incurred by the secretary and the department under this section. Any money that remains shall be retained by the secretary to defray the expenses of formulation, issuance, administration, or enforcement of any subsequent program for seafood promotion. If no seafood promotion program is undertaken within a period of three years from the date of termination of the council, that money shall be withdrawn from the approved depository and paid into the special account for enhancement and restoration programs established pursuant to Section 7861 of the Fish and Game Code. The secretary may also specifically designate any money that remains for expenditure for research on commercial fishery resources or fisheries, the improvement of commercial fishery resources or fisheries, or both.

history: (History: Amended by Stats. 1996, Ch. 726, Sec. 26. Effective January 1, 1997.)


kind: section

code: FAC

text: The production and marketing of tomatoes constitutes 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. 1995, Ch. 210, Sec. 1. Effective January 1, 1996.)

chapter: 24. California Tomato Commission

article: 1. Declaration and General Provisions

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24. California Tomato Commission > 1. Declaration and General Provisions


text: The maintenance of the tomato industry of California is necessary to assure the public of a continuous supply of this vital product and the maintenance of needed levels of income for those engaged in the tomato industry.

division: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS

part: 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS

article: 1. Declaration and General Provisions


text: The production of tomatoes in California has the potential to be one of the leading segments of the state’s agricultural industry. To realize this potential, there is a need to make consumers aware of the nutritional value of tomatoes, the high quality of tomatoes produced by the industry, and the versatility of tomatoes as part of a well-balanced diet. The activities made possible by the establishment of the commission will meet this need and further the interests of the industry and the state.

article: 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 tomatoes, an integrated approach to control pests and diseases common to tomatoes, and more efficient cultural practices. In addition, the commission is necessary to carry out the California tomato industry’s commitment to the efficient development and management of a national and international advertising and promotion program which, combined with the research program, will enhance the competitiveness of the California tomato industry within the national and international marketplace.

article: 1. Declaration and General Provisions


text: The successes that the tomato industry of California have enjoyed have come in part through a commitment to industry funded production research that has led to significant improvements in the quality and variety of the tomatoes available to consumers. It has also led to tomatoes being a better consumer value. The establishment of the commission will continue and enhance this research effort and move the tomato industry toward its potential, resulting in increased consumer value and enhanced grower returns.

article: 1. Declaration and General Provisions


text: The production and marketing of tomatoes in this state is hereby declared to be affected with a public interest. The provisions of this chapter are 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: 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 so-called 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.

article: 1. Declaration and General Provisions


text: This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

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 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: Opportunity exists for continued growth and expansion of the tomato industry by creating new markets in major portions of this country. The success of such an expansion program is uniquely dependent upon effective advertising, promotion, and research, since the creation of new markets is essentially a matter of educating and informing people of the use, nutritional value, and availability of the commodity. The expansion of the tomato industry also provides an important source of jobs for many people in this state, a high proportion of whom reside in historically depressed areas of the state, and serves to ensure the preservation of an agrarian society.

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 tomatoes the opportunity to avail themselves of the benefits of collective action of the broad fields of development, maintenance, and expansion of markets, marketing research, advertising and promotion, and production and processing research necessary to achieve the purposes stated herein.

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 > 24. California Tomato Commission > 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 Tomato Commission.

article: 2. Definitions


text:
“Districts” shall consist of the following:

(a) District 1 consists of Imperial and Riverside Counties.

(b) District 2 consists of Los Angeles, Orange, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties.

(c) District 3 consists of Fresno, Kern, Kings, and Tulare Counties.

(d) District 4 consists of Monterey County.

(e) District 5 consists of Madera, Merced, and Stanislaus Counties.

(f) District 6 consists of San Joaquin County.

(g) District 7 consists of all counties in the State of California.

The boundaries of any district may be changed by a two-thirds vote of the commission, which is concurred in by the secretary. These boundaries need not coincide with county lines.

history: (History: Amended by Stats. 2006, Ch. 499, Sec. 19. Effective January 1, 2007.)

article: 2. Definitions


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

article: 2. Definitions


text: “Fresh” means tomatoes, in any form, which have not been subject to heat processing.

article: 2. Definitions


text: “Handle” means to engage in the operation of selling, marketing, or distributing fresh market tomatoes that have been produced, or purchased or acquired from a producer, or which are marketed on behalf of a producer, whether as owner, agent, employee, broker, or otherwise, but shall not include retailing except for fresh market tomatoes not previously subject to this chapter.

article: 2. Definitions


text: “Handler” or “shipper” means any person, other than a common carrier, who handles a quantity of 250,000 pounds or more of tomatoes during a marketing season.

article: 2. Definitions


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

article: 2. Definitions


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

article: 2. Definitions


text: “Marketing season” or “fiscal year” are synonymous terms and mean the period beginning March 1 of any year and extending through the last day of February of the following year.

article: 2. Definitions


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

article: 2. Definitions


text: “Producer” and “grower” are synonymous terms and mean any person who produces, or causes to be produced, tomatoes in a quantity of 250,000 pounds or more delivered to handlers during the marketing season.

article: 2. Definitions


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

article: 2. Definitions


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

article: 2. Definitions


text: “Ship” and “shipping” are synonymous terms and mean the operations of receiving, grading, cleaning, transporting, distributing, or otherwise preparing for market or marketing, tomatoes for fresh consumption.

article: 2. Definitions


text:
(a) “Tomatoes” means all tomatoes that are produced for commercial purposes and are handled within the state in fresh form, except cherry tomatoes and tomatoes grown in a greenhouse.

(b) For purposes of this section, “tomatoes grown in a greenhouse” means tomatoes grown in a fixed steel structure using irrigation and climate control, in an artificial medium that substitutes for soil.

(c) Cherry tomatoes and tomatoes grown in a greenhouse may be included in the definition of tomatoes in subdivision (a) if approved by the producers and handlers of those tomatoes pursuant to a referendum conducted in accordance with the procedures in Article 5 (commencing with Section 78690) of Part 2 of Division 22.

history: (History: Amended by Stats. 2003, Ch. 350, Sec. 1. Effective January 1, 2004.)

article: 2. Definitions


text:
There is in the state government the California Tomato Commission. The commission shall be composed of 10 producers, seven handlers, and may include one public member, at the discretion of the commission.

(a) Producers within the respective districts shall elect one producer from District 1, one producer from District 2, one producer from District 3, one producer from District 4, one producer from District 5, one producer from District 6, and four at-large producers from District 7.

(b) Handlers within Districts 1 to 6, inclusive, shall elect one handler from each district and one at-large handler from District 7.

(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.

history: (History: Amended by Stats. 2006, Ch. 499, Sec. 20. Effective January 1, 2007.)

article: 3. The California Tomato Commission

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24. California Tomato Commission > 3. The California Tomato 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. The California Tomato 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, as the case may be, in a court of competent jurisdiction, which may issue a temporary restraining order, permanent injunction, or other applicable relief.

article: 3. The California Tomato 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’s response may be a requirement that additional information be provided.

article: 3. The California Tomato Commission


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.

article: 3. The California Tomato Commission


text: Except for ex officio members, an alternate for each member shall be elected 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 until a qualified successor is elected or appointed.

article: 3. The California Tomato Commission


text: Any vacancy on the commission occurring by the failure of any person elected to the commission as a member or 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 remaining 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.

article: 3. The California Tomato Commission


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, shall be filled by another eligible person for the unexpired portion of the term by the secretary from nominees recommended by the commission. 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.

article: 3. The California Tomato Commission


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 who has a financial interest in producing or causing to be produced, tomatoes for market. Qualifications of producer members and their alternates shall be maintained during their entire term of office.

article: 3. The California Tomato Commission


text: Any handler member and his or her alternate on the commission shall be an individual handler or an employee or representative of a handler who has a financial interest in handling tomatoes for market. Qualifications of handler members and their alternates shall be maintained during their entire term of office.

article: 3. The California Tomato Commission


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

article: 3. The California Tomato Commission


text: The term of office of all members and alternates on the commission, except ex officio members, shall be two years from the beginning of the marketing season in the year of their election and until qualified successors are elected.

article: 3. The California Tomato Commission


text: The commission shall be, and is hereby declared and created, a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. Copies of its proceedings, records, and acts, when authenticated, shall be prima facie evidence of the truth of all statements therein.

article: 3. The California Tomato Commission


text: A quorum of the commission shall be six voting producer members and four voting handler members. Except as provided in Section 78723, the vote of a majority of members present at a meeting at which there is a quorum shall constitute the act of the commission.

article: 3. The California Tomato Commission


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.

article: 3. The California Tomato Commission


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.

article: 3. The California Tomato 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).

article: 3. The California Tomato Commission


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 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. Liability is several and not joint, and 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.

article: 3. The California Tomato Commission


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 of the Commission

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24. California Tomato Commission > 4. Powers and Duties of the Commission


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.

article: 4. Powers and Duties of the Commission


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, to promote and maintain the tomato industry.

article: 4. Powers and Duties of the Commission


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

article: 4. Powers and Duties of the Commission


text:
The commission may 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 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.

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.

article: 4. Powers and Duties of the Commission


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

article: 4. Powers and Duties of the Commission


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 of the Commission


text: The commission may establish offices and incur expenses, enter into any and all contracts and agreements, create liabilities, 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 of the Commission


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 may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.

article: 4. Powers and Duties of the Commission


text: The commission may present facts to, and negotiate with, state, federal, and foreign agencies on matters that affect the tomato industry.

article: 4. Powers and Duties of the Commission


text: The commission may promote the sale of tomatoes 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 tomatoes, and to educate and instruct the public with respect to the uses, healthful properties, and nutritional value of tomatoes.

article: 4. Powers and Duties of the Commission


text: The commission may educate and instruct the wholesale and retail trade with respect to proper methods of handling and selling tomatoes, and conduct market surveys and analyses.

article: 4. Powers and Duties of the Commission


text: The commission may conduct, and contract with others to conduct, scientific research, including the study, analysis, dissemination, and accumulation of information obtained from research or elsewhere, respecting cultural and production practices, and marketing and distribution of tomatoes. 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 of the Commission


text: The commission may make in its name, contracts to receive and render services in formulating and conducting plans and programs and other contracts or agreements that the commission may deem necessary for carrying out this chapter.

article: 4. Powers and Duties of the Commission


text: The commission may solicit and accept contributions of, or match private, state, or federal funds, and employ or make contributions of funds to other persons or state or federal agencies for purposes of promoting and maintaining the tomato industry.

history: (History: Amended by Stats. 2001, Ch. 373, Sec. 17. Effective January 1, 2002.)

article: 4. Powers and Duties of the Commission


text: The commission may collect information, including, but not limited to, industry crop statistics, and publish and distribute without charge, a bulletin or other communication to persons subject to this chapter.

article: 4. Powers and Duties of the Commission


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

article: 4. Powers and Duties of the Commission


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 78665.

article: 4. Powers and Duties of the Commission


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 of the Commission


text: The commission and the secretary shall keep confidential and shall not disclose, except when required by court order after a hearing in a judicial proceeding, all lists of persons subject to this chapter in their possession. However, the commission shall establish procedures to provide producers and handlers access to communication with other producers and handlers regarding noncommercial matters affecting the commission and persons subject to its jurisdiction. The access shall not include the actual release of the list of the names and addresses of producers and handlers in the possession of the commission or the secretary.

article: 4. Powers and Duties of the Commission


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 of the Commission


text:
(a) In order to prevent unfair trade practices that are detrimental to California’s tomato industry, including, but not limited to, deception and misinformation, the commission may collect and disseminate to any and all interested persons, historical handler packout information, including, but not limited to, tomato grade and size.

(b) The identity of each handler reporting information and the information reported under this section shall be kept confidential and shall not be 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 information pursuant to this section shall be approved by the secretary.

article: 4. Powers and Duties of the Commission


text: The commission may administer any government program that is engaged in the activities authorized by this chapter and that directly and exclusively affects the fresh tomato industry, upon the request of an authorized agent of the program.

history: (History: Added by Stats. 1998, Ch. 399, Sec. 11. Effective January 1, 1999.)

article: 4. Powers and Duties of the Commission


text:
(a) Within 15 days of the effective date of this chapter, the secretary shall establish a list of producers and handlers eligible to vote on implementation of this chapter. In establishing the list, the secretary may require that producers and handlers submit the names and mailing addresses of all producers and handlers. The secretary also may require that the information provided include the quantity of tomatoes produced by each producer and the quantity of tomatoes handled by each handler, or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 78691. The request for the information shall be in writing and shall be filed within 10 days following receipt of the request.

(b) Any producer 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 producer or handler. Failure to be on the list does not exempt the person from paying assessments, and does not invalidate any industry votes conducted pursuant to this article.

(c) Proponents and opponents of the commission may contact producers on the lists in a form and manner prescribed by the secretary if all expenses associated with those contacts are paid in advance.

history: (History: Amended by Stats. 2004, Ch. 183, Sec. 130. Effective January 1, 2005.)

article: 5. Implementation and Voting Procedures

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24. California Tomato 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 sold a majority of the total quantity of tomatoes in the preceding marketing season by all of the producers who voted 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 sold 65 percent or more of the total quantity of tomatoes in the preceding marketing season by all of the producers who voted 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 tomatoes in the preceding marketing season by all of the handlers who voted 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 tomatoes in the preceding marketing season by all of the handlers who voted in the referendum.

article: 5. Implementation and Voting Procedures


text: In finding whether the commission is approved pursuant to this article, the vote of any nonprofit agricultural cooperative marketing association that is authorized by its members to so vote, shall be considered as being the approval or rejection by the individual members of, or the individual stockholders in, the nonprofit agricultural cooperative marketing association.

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 person 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 78691, the secretary shall certify and give notice of the favorable vote to all affected 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 Section 78691, 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: Upon certification of the commission, the members and alternates of any entity operating pursuant to an existing state marketing order affecting the same subject matter as this chapter shall comprise the initial membership of the commission. Thereafter, 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) 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 Section 78690, 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:
(a) The commission shall establish the assessment for the marketing season not later than March 1 of each year or as soon thereafter as is possible. The assessment shall not exceed twenty cents ($0.20) per 100 pounds, or the equivalent, for tomatoes delivered to handlers by producers. Of the assessment, not more than ten cents ($0.10) per 100 pounds prepared for market, or the equivalent, shall be assessed against producers, and not more than ten cents ($0.10) per 100 pounds shall be assessed against handlers.

(b) An assessment greater than the amount provided for in this section may not be charged unless and until a greater fee is approved by a majority of the commission and by eligible producers and handlers pursuant to procedures specified in Section 78691.

history: (History: Amended by Stats. 2006, Ch. 499, Sec. 21. Effective January 1, 2007.)

article: 6. Assessments and Records

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24. California Tomato Commission > 6. Assessments and Records


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

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 an eligible producer or handler. 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 handles tomatoes in any quantity shall keep a complete and accurate record of all transactions involving the purchase or sale of tomatoes. The records shall be in a simple form and contain such information as the commission shall prescribe. The records shall be preserved by the handler 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 proprietary information obtained by the commission or the secretary from any source, including, but not limited to, the names and addresses of producers, is confidential and shall not be disclosed except when required by a court order after a hearing 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: 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: The first handler of tomatoes being assessed shall deduct the assessment from amounts paid by him or her to the producer, and shall be a trustee of these assessments and assessments required to be paid by the handler until they are paid to the commission at the time and in the manner prescribed by the commission. Failure to collect the assessment from any producer shall not exempt the handler from liability. In addition, failure of a handler to remit the collected producer assessments to the commission shall not relieve the producer of this obligation.

article: 6. Assessments and Records


text: When the producer or handler is a corporation, all of the directors and officers of the corporation 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 to collect assessments, shall also include identical liability upon each director or officer of the corporation.

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 112 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:
It is a misdemeanor for any person to do any of the following:

(a) Willfully render or furnish a false report, statement, or record required by the commission, or in any way to affect the shipment and marketing of tomatoes with the intent 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 of tomatoes or in the wholesale or retail trade of tomatoes, 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 received tomatoes, and the quantity so received.

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

article: 6. Assessments and Records


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 that 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: 6. Assessments and Records


text:
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. 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.

A writ of attachment shall be issued pursuant to Chapter 4 (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.

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 tomatoes until there is full compliance and satisfaction of the judgment. 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


text: Any action by the commission for any violation of 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 act of which the person complains.

article: 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.

article: 6. Assessments and Records


text: Every five years, commencing with the 2001–02 marketing season, 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. In finding whether the commission is continued pursuant to this article, the vote of any nonprofit agricultural cooperative marketing association that is authorized by its members to so vote, shall be considered as being the approval or rejection by the individual members of, or the individual stockholders in, the nonprofit agricultural cooperative marketing association.

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24. California Tomato 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 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 marketing season ending the last day of February 2002. Thereupon, the operations of the commission shall be concluded and funds distributed in the manner provided in Section 78724. No bond or security shall be required for any such referendum.

article: 7. Continuation or Suspension and Termination


text: Following a hearing, a favorable referendum if required, conducted prior to the last day of February 2002, the process specified in Section 78720 shall be conducted by the commission every fifth year thereafter between March 1 and February 28, unless a referendum is conducted as the result of a petition pursuant to Section 78723. 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 effectuate its declared purposes, the commission may recommend to the secretary that the operation of this chapter be suspended. However, any suspension shall not become effective until the expiration of the current marketing season.

(b) The secretary shall, upon receipt of the recommendation, or may, after a public hearing to review a petition filed with him or her requesting a suspension signed by 20 percent of the producers and handlers by number who sold or handled not less than 20 percent of the total quantity of tomatoes in the immediately preceding marketing season, hold a referendum among the 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 tended to effectuate 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 producers and handlers 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 producers and handlers who voted in the referendum voted in favor of suspension, and the producers and handlers so voting sold or handled a majority of the total quantity of tomatoes in the preceding marketing season by all of the producers and handlers who voted in the referendum.

(2) A majority of the producers and handlers who voted in the referendum voted in favor of suspension, and the producers and handlers so voting sold or handled 65 percent or more of the total quantity of tomatoes in the preceding marketing season by all of the producers and handlers 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 marketing season. However, if the commission finds that the amounts returnable are so small as to make impractical the computation and remitting of the prorate refund to these persons, any funds 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 conducted or used to fund activities related to the subject matter of this chapter.


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


text: The production and distribution of winegrapes and wine in Mendocino County constitute important industries that provide substantial and necessary revenues for the county and state, and employment for citizens of the state. It also furnishes an important food product that benefits the public health and welfare.

history: (History: Added by Stats. 2005, Ch. 597, Sec. 1. Effective January 1, 2006.)

article: 1. Declarations and General Provisions

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24.5. Mendocino County Winegrape and Wine Commission > 1. Declarations and General Provisions


text: The maintenance and expansion of the winegrape and wine industries of Mendocino County and of its local, national, and foreign markets is necessary to assure the consuming public of a continuous supply of these products and needed levels of income for those engaged in the winegrape and wine industries in Mendocino County.

chapter: 24.5. Mendocino County Winegrape and Wine Commission

article: 1. Declarations and General Provisions


text: Opportunity exists for continued growth and expansion of the Mendocino County winegrape and wine industries by creating new markets in the state, the county, and abroad. The success of an expansion program is uniquely depending upon effective education, advertising, promotion, and research, since the creation of new markets is essentially a matter of educating and informing people of the use and availability of the commodity. The expansion of the Mendocino County winegrape and wine industries also provides an important source of jobs for many people in the area, and serves to ensure the preservation of an agrarian society.

article: 1. Declarations and General Provisions


text: The production of winegrapes, wine, and winegrape products in Mendocino County has the potential to be one of the leading segments of the state’s winegrape and wine industries. To realize this potential, there is a need to make consumers aware of the high quality of winegrapes, wine, and winegrape products produced in Mendocino County. The activities made possible by the establishment of the commission will meet this need and further the interests of the industries and the state.

article: 1. Declarations and General Provisions


text: The Mendocino County winegrape and wine industries have enjoyed much success due to a commitment by the industries to fund research that has led to significant improvements in the quality and variety of winegrapes and wine available to consumers. It has also led to winegrapes and wine being a better consumer value. The establishment of the commission will continue to enhance this research effort and move the Mendocino County winegrape and wine industries toward its potential, resulting in increased consumer value and enhanced returns to growers and vintners.

article: 1. Declarations and General Provisions


text: The production and marketing of winegrapes, wine, and winegrape products produced in Mendocino County is hereby declared to be of public interest, therefore it is necessary and appropriate that these provisions be specifically applicable to Mendocino County. 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. Declarations and General Provisions


text:
(a) It shall be the policy of this state to preserve and encourage agricultural activities in the state, promote consumption of agricultural commodities produced and harvested in California, provide for research, governance, and accountability, including the ability for agriculture to act collectively and to assess itself through the process of referenda.

(b) It shall also be the policy of this state that the program authorized in this chapter shall engage in activities that are not more extensive in scope than is necessary to accomplish its purposes, and that the powers and duties of this program are designed to directly and materially advance the state’s interest in a stable, thriving agricultural industry. Further, this policy can be implemented most effectively by the collective actions authorized in this chapter while not preventing individuals from additionally engaging in self-help activities.

article: 1. Declarations 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. Proof that any action complained of was done in compliance with this chapter shall be a complete defense to the action or proceeding. The Legislature intends this program to be among those contemplated by Congress in the enactment of Section 610(i) of Title 7 of the United States Code.

article: 1. Declarations and General Provisions


text: The commission form of administration created by this chapter is uniquely situated to provide those engaged in the production of winegrapes, wine, and other winegrape products in Mendocino County the opportunity to avail themselves of the benefits of collective action in the broad fields of development, maintenance, and expansion of markets, production, marketing, processing, and health-related research, public and trade education, and advertising and promotion necessary to achieve the purposes stated herein.

article: 1. Declarations and General Provisions


text: This chapter shall be liberally construed. If any provision of this chapter or the application thereof to any person or circumstances is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

article: 1. Declarations 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 agricultural 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 agricultural industry concerned is tantamount to, and constitutes, the public generally within the meaning of Section 87103 of the Government Code.

article: 1. Declarations 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 > 24.5. Mendocino County Winegrape and Wine Commission > 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: “Brandy” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of whole, sound, ripe grapes or from the residue thereof, distilled at not over 170 degrees proof.

article: 2. Definitions


text: “Commission” means the Mendocino Winegrape and Wine Commission.

article: 2. Definitions


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

article: 2. Definitions


text: “Grape concentrate” or “concentrate” means unfermented grape juice from which the major portion of the original water content has been removed.

article: 2. Definitions


text: “Grape juice” or “juice” means unfermented crushed grapes without solids containing the major portion of the original water content.

article: 2. Definitions


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

article: 2. Definitions


text: “High proof” means an alcoholic distillate or a mixture of distillates obtained from the fermented juice, mash, or wine of fresh winegrapes or from the residue thereof.

article: 2. Definitions


text: “Market” means to sell, barter, trade, purchase, acquire, or otherwise distribute wine, winegrapes, or winegrape products.

article: 2. Definitions


text: “Market development” includes, but is not limited to, trade, promotion, public education, dissemination of information on health and social issues, and other matters, and activities for the prevention, modification, or removal of trade barriers that restrict the free flow of winegrapes, wine, or winegrape products to market and may include, but is not limited to, the presentation of facts to local, state, federal, or foreign governmental agencies on matters that affect this chapter.

article: 2. Definitions


text: “Market research” means any investigation, development, analysis, or implementation of information relating to the marketing of winegrapes, wine, and winegrape products including, but not limited to, trade practices, consumer trends, promotion, sales, and advertising.

article: 2. Definitions


text: “Marketing season” or “fiscal year” means the period beginning July 1 of any year and extending through June 30 of the following year.

article: 2. Definitions


text: “Must” means a mixture of unfermented crushed grapes, solid grape particles, and grape juice.

article: 2. Definitions


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

article: 2. Definitions


text: “Process” or “processed” means producing must, grape juice, grape concentrate, wine, or other winegrape products, including high proof and brandy from winegrapes.

article: 2. Definitions


text: “Producer” or “grower” means any person who is engaged within Mendocino County in the business of producing, or causing to be produced, winegrapes for market. Producer also includes any person who receives winegrapes as a payment for the use of his or her property in the production of winegrapes.

article: 2. Definitions


text: “Production research” means research relating to the production and processing of winegrapes, including, but not limited to, the development of new winegrape products and uses for these products.

article: 2. Definitions


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

article: 2. Definitions


text: “Vintner” and “processor” are synonymous and, except as otherwise specifically provided in this chapter, mean any person engaged in Mendocino County in producing or causing to be produced must, grape juice, grape concentrate, wine, or other winegrape products, including high proof and brandy, and includes a “winegrower” in Mendocino County as that term is defined in Section 23013 of the Business and Professions Code, who produces wine from winegrapes. However, a producer does not become a vintner solely by the act of field crushing winegrapes before delivering the winegrapes as must to another person.

history: (History: Amended by Stats. 2007, Ch. 124, Sec. 7. Effective January 1, 2008.)

article: 2. Definitions


text: “Wine” means the product obtained by the fermentation of winegrapes or juice therefrom, with or without addition or abstracting, and includes any product made from winegrapes that is defined as a wine and permitted under Part III (commencing with Section 5381) of Subchapter E of Chapter 51 of Title 26 of the United States Code, and in the statutes of this state and regulations issued thereunder defining wine produced from grapes.

article: 2. Definitions


text: “Winegrapes” means grapes produced in Mendocino County that are intended to be converted from their fresh form into grape juice, grape concentrate, wine, or products thereof, including, but not limited to, high proof brandy produced from winegrapes.

article: 2. Definitions


text: “Winegrape products” include, but are not limited to, must, grape juice, grape concentrate, wine, high proof, and brandy produced from winegrapes.

article: 2. Definitions


text:
(a) There is in the state government the Mendocino Winegrape and Wine Commission. The commission shall be composed of six producers who are not vintners, four vintners, and one public member.

(b) The public member and his or her alternate shall be appointed to the commission by the secretary from nominees recommended by the commission.

(c) The secretary shall be a nonvoting, ex officio member of the commission.

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24.5. Mendocino County Winegrape and Wine Commission > 3. The Mendocino Winegrape and Wine 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 committee.

(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. The Mendocino Winegrape and Wine Commission


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


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’s response may be a requirement that additional information be provided.


text: The commission shall reimburse the secretary for all expenditures incurred 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 the that action.


text: Each member, except the ex officio members, shall have an alternate member selected by the member, subject to approval by the commission. 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 until a qualified successor is elected or appointed.


text: Any individual serving as a producer member and his or her alternate member shall be a producer who is not also a vintner, or a management-level employee or representative of a producer who is not also a vintner, who has a financial interest in producing, or causing to be produced, winegrapes for market. The qualifications of producer members and alternate members shall be maintained during the entire term of office. No more than one member and his or her alternate member shall be employed by, represent, or be connected in a proprietary capacity with the same producer. However, producer membership in an agricultural nonprofit cooperative association or trade organization shall not be considered employment or being in a proprietary capacity.


text: Any individual serving as a vintner member and his or her alternate member shall be a vintner, or a management-level employee or representative of a vintner, who has a financial interest in producing winegrapes for market. The qualifications of vintner members and alternate members shall be maintained during the entire term of office. No more than one member and his or her alternate member shall be employed by, represent, or be connected in a proprietary capacity with the same vintner. However, vintner membership in an agricultural nonprofit cooperative association or trade organization shall not be considered employment or being in a proprietary capacity.


text: The public member and his or alternate member shall have all the rights, privileges, and powers of any other member of the commission. The public member shall not have any financial interest in the winegrape or wine industries.


text: The term of office of members and alternate members shall be for two years or until their successors have been elected and have qualified. However, of the first members of the commission, a portion of the producer members and their alternate members, and a portion of the vintner members and their alternate members, shall serve for one year so that the terms shall be staggered. The determination of the term of each member and his or her corresponding alternate member shall be made by lot. The commission may establish term limits for members and alternate members pursuant to procedures established by the commission and concurred in by the secretary.


text: Not less than six voting members shall constitute a quorum of the commission.


text: The vote of a majority of the members present at a meeting at which there is a quorum shall constitute an act of the commission.


text: The commission shall be and is hereby declared and created a corporate body. It shall have the power to sue and be sued, to contract and be contracted with, and to have and possess all of the powers of a corporation. It may adopt a corporate seal. 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.


text: The secretary or his or her representatives shall be notified and may attend meetings of the commission and any committee meetings of the commission.


text: No member or alternate member of the commission, or member of a committee established by the commission who is not a member of the commission, shall receive a salary. Each member of the commission and any alternate member serving in place of his or her member, except ex officio members, and each member of a committee established by the commission who is not a member of the commission, shall receive necessary traveling expenses and meal allowances, as approved by the commission, and may receive an amount not to exceed one hundred dollars ($100) per day, as established by the commission. This amount shall be paid 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 assignment for the commission, as approved by the commission.


text: All funds received by the assessments levied pursuant to 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. 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:
(a) 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.

(b) No member, alternate member, or any employee or agent of the commission, is personally liable for the contracts of the commission or for errors in judgment, mistakes, or other acts, either of commission or omission, except for their own individual act of dishonesty or crime. Liability is several and not joint, and no member, alternate member, or any employee or agent of the commission is liable individually for the default, act, or omission of any other member, alternate member, or any employee or agent of the commission.


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

(a) Elect a chairperson and other officers as it may deem advisable, and delegate duties as may be advisable.

(b) Adopt and from time to time alter, rescind, modify, and amend all proper and necessary rules, procedures, and orders for the exercise of its powers and the performance of its duties, including rules of procedure for appeals from any rule, procedure, or order of the commission.

(c) 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, proper, or advisable to effectuate the purposes of this chapter.

(d) Employ or retain a person to serve at the pleasure of the commission as president and chief executive officer of the commission, and other personnel, including private legal counsel of its choice, necessary to carry out this chapter. The commission may fix the compensation for all employees of the commission. 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.

(e) Establish offices and incur expenses, and enter into any and all contracts and agreements, and create liabilities and borrow funds in advance or receipt of assessments as may be necessary, at the discretion of the commission, for the proper administration and enforcement of this chapter and the performance if its duties.

(f) Maintain accurate books, records, and accounts of all 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 may, as he or she determines necessary, conduct or cause to be conducted a fiscal and compliance audit of the commission.

(g) Present facts to, and negotiate with, local, state, federal, and foreign agencies on matters affecting the winegrape, wine, and winegrape products industries.

(h) Appoint committees composed of both members and nonmembers of the commission.

(i) Promote the sale of winegrapes, wine, and winegrape products by advertising and other similar means for the purpose of maintaining and expanding present markets and creating new and larger intrastate and foreign markets for winegrapes, assess and address the impact of local, state, federal and foreign regulations on the winegrape products industries, and seek the elimination of tariff and nontariff trade barriers.

(j) Educate and instruct the consuming public with respect to winegrapes, wine, and winegrape products, including, but not limited to, the uses, healthful properties and dietetic value of these commodities, and the environmental protection and conservation issues relating to the production of winegrapes.

(k) Educate and instruct the wholesale, food service, and retail trade with respect to proper methods of handling and marketing of winegrapes, wine, and winegrape products, arrange for the performance of merchandising work providing display and other promotional materials, conduct market surveys and analysis, assist local, state, and federal agencies in negotiating with foreign governments regarding issues affecting market access, including, but not limited to, resolving phytosanitary issues, developing shipping protocols, limiting chemical residues, and addressing packaging, labeling, and other issues raised by countries imposing trade barriers on the import of agricultural products into their markets, and undertake any other similar activities that the commission may determine appropriate for the maintenance and expansion of present markets and the creation of new and larger markets for winegrapes, wine, and winegrape products.

(l) Conduct, and contract with others to conduct, scientific and other research, including the study, analysis, dissemination and accumulation of information obtained from research or elsewhere respecting the production, cultural practices, nutritional and dietetic value, processing, storage, refrigeration, inspection, transportation, marketing and distribution of winegrapes, wine, and winegrape products.

(m) Accept contributions of private, local, state, or federal funds, and make contributions of commission funds, or match contributions, to other persons or to local, state, or federal agencies for purposes of promoting, enhancing and maintaining the Mendocino County winegrape, wine, and winegrape products industries.

(n) Cooperate with governmental or private entities in the resolution of emergencies arising in the industry and impacting the health and safety of the public or the continued stability of the industry.

(o) Collect information, including, but not limited to, industry crop statistics, and publish and distribute without charge, a bulletin or other communication to persons subject to this chapter.

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

(q) 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 for the payment of employees.

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

(s) Keep confidential and not disclose, except when required by a court order after a hearing in a judicial proceeding involving this chapter, all information deemed proprietary or trade secret by the commission. The Legislature finds and declares that this provision is required to ensure that producer and vintner proprietary and trade secret information shall not be disclosed. The commission shall establish procedures to provide producers and vintners access to communicate with other producers and vintners regarding noncommercial matters affecting the commission so long as the access does not directly or indirectly release proprietary or trade secret information in the possession of the commission.

(t) 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.

(u) Administer any program that is engaged in activities authorized by this chapter upon the request of an authorized agent of the program.

article: 4. Powers and Duties of the Commission

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24.5. Mendocino County Winegrape and Wine Commission > 4. Powers and Duties of the Commission


text:
(a) The commission may collect and disseminate to any and all interested parties, vintner market price information based on sales that have occurred in order to prevent unfair trade practices that are detrimental to the Mendocino County winegrape, wine, and winegrape products industries, including, but not limited to, deception and misinformation.

(b) The information reported under this section shall be kept confidential and shall not be made public under any circumstances. Only information that gives industry totals, averages, and other similar data in aggregate, nonindividualized form may be disclosed by the commission. The Legislature finds and declares that this provision is required to ensure that vintner proprietary information shall not be disclosed.

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

article: 4. Powers and Duties of the Commission


text:
(a) Within 90 days of the effective date of this chapter, the secretary shall establish a list of producers and vintners in Mendocino County eligible to vote on implementation of this chapter. In establishing the list, the secretary may require that all producers and vintners in Mendocino County submit their names and mailing addresses.

(b) The secretary may also require that the information provided include the quantity of winegrapes, wine, or winegrape products produced by each producer and vintner or, in the alternative, may establish procedures for receiving the information at the time of the referendum vote specified in Section 78903. The request for information shall be in writing and shall be submitted to the secretary within 10 days following the receipt of the request.

(c) Any producer or vintner in Mendocino County 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 producer or vintner. Failure to be on the list does not exempt the person from paying assessments, and does not invalidate any industry votes conducted pursuant to this chapter.

(d) Proponents and opponents of the commission may contact producers and vintners on the lists in a form and manner prescribed by the secretary if all expenses associated with those contacts are paid in advance.

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24.5. Mendocino County Winegrape and Wine Commission > 5. Referendum on Implementation of this Chapter


text:
In determining whether this chapter is approved by producers, the secretary shall find both of the following:

(a) That at least 40 percent of the total number of producers from the list established by the secretary participated in the referendum, and that either one of the following has occurred:

(1) Sixty-five percent or more of the producers who voted in the referendum voted in favor of this chapter, and the producers so voting market a majority of the volume of winegrapes in the preceding market season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted 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 marketed 65 percent or more of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the producers who voted in the referendum.

(b) That at least 40 percent of the total number of vintners from the list established by the secretary participated in the referendum, and that either one of the following has occurred:

(1) Sixty-five percent or more of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting either acquired or processed their own production, or a combination thereof, that represents a majority of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the vintners who voted in the referendum.

(2) A majority of the vintners who voted in the referendum voted in favor of this chapter, and the vintners so voting either acquired or processed their own production, or a combination thereof, that represents 65 percent or more of the volume of winegrapes in the preceding marketing season, or in the current marketing season if the harvest is completed prior to the vote, by all the vintners who voted in the referendum.

article: 5. Referendum on Implementation of this Chapter


text: The secretary shall establish a period in which to conduct the referendum that shall not be less than 10 days nor more than 60 days in duration, and may prescribe additional procedures 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.


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


text: The secretary shall certify and give notice of a favorable vote to all producers and vintners whose names and addresses are on file with the secretary if he or she finds that a favorable vote has been given as provided in this chapter. The secretary shall certify and declare this chapter inoperative if he or she finds that a favorable vote has not been given as provided in this chapter.


text: Upon certification of the commission, the secretary shall call meetings of producers and vintners in Mendocino County for the purpose of nominating and electing persons to the commission, or in the alternative, may conduct the elections by mail ballot. All producers and vintners on the secretary’s list shall be given written notice of the election meetings at least 15 days prior to the meeting date, or reasonable notice of elections by mail ballot and a reasonable time period in which to return ballots. In any election of producer and vintner members to the commission, only producers who are not also vintners may vote for producer members and alternate members, and only vintners may vote for vintner members and alternate members.


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


text:
(a) Prior to the implementation referendum conducted by the secretary, the proponents of the commission shall deposit with the secretary the amount that the secretary deems necessary to defray the expenses in creating the commission, including, but not limited to, preparing the necessary producer and vintner lists and conducting the referendum.

(b) Any funds remaining after paying expenses shall be returned to the proponents of the commission who deposited the funds with the secretary.

(c) 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 or other professional fees and costs incurred in establishing the commission.


text:
Prior to the beginning of each marketing season, or as soon as possible thereafter, the commission shall establish assessment rates for the marketing season, as follows:

(a) An annual assessment on producers of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000), as determined by the commission, based on the number of tons of winegrapes marketed during the preceding marketing season.

(b) In addition, producers shall pay an assessment not less than one dollar ($1) and not greater than twelve dollars ($12) per ton of winegrapes marketed by producers. In the discretion of the commission, the producer assessment may be established as a percent of the gross dollar value received by producers for winegrapes rather than on a per ton basis. The assessment shall be established on a sliding scale that decreases the assessment by two dollars ($2) per ton, or the percentage equivalent if the assessment is a percent of gross dollar value, for every 500 tons of winegrapes marketed by producers in excess of 1000 tons.

(c) An annual assessment on vintners of not less than three hundred fifty dollars ($350) and not more than seven thousand five hundred dollars ($7,500), as determined by the commission, based on the number of tons of winegrapes processed and marketed by vintners during the preceding marketing season.

(d) In addition, vintners shall pay an assessment not less than one dollar ($1) and not greater than twelve dollars ($12) per ton of winegrapes processed by vintners for which an assessment has not already been paid by a producer. The assessment shall be established on a sliding scale that decreases the assessment by two dollars ($2) per ton for every 500 tons of winegrapes processed by vintners in excess of 1000 tons.

(e) An assessment greater than the amount provided for in this section may not be charged unless and until a greater amount is approved by a majority of the commission and by eligible producers and vintners pursuant to the referendum procedures specified in Section 78903.

history: (History: Amended by Stats. 2007, Ch. 124, Sec. 8. Effective January 1, 2008.)

article: 6. Assessments

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24.5. Mendocino County Winegrape and Wine Commission > 6. Assessments


text: This chapter shall not apply to winegrapes produced for a producer’s home or ornamental use, or processed for a vintner’s home use. A producer growing winegrapes commercially on three acres or less shall be exempted from the base assessment in subdivision (a) of Section 78921. Any producer or vintner requesting an exemption from the payment of assessments shall provide an affidavit approved by the commission containing information required by the commission. The commission shall review the affidavit, conduct any additional investigation it deems appropriate, and approve or deny the exemption. If granted, the exemption shall be valid for one marketing season and a new affidavit shall be filed and approved prior to each marketing season in order to retain an exemption from this chapter.

history: (History: Amended by Stats. 2007, Ch. 124, Sec. 9. Effective January 1, 2008.)

article: 6. Assessments


text:
(a) Every producer and vintner shall keep complete and accurate records of winegrapes produced, processed, and marketed, including, but not limited to, the number of tons of winegrapes delivered to or received by vintners, whether within or outside of Mendocino County, the names of the producers from which vintners receive winegrapes, and records related to the sale of winegrapes, wine, or winegrape products. The records shall be in simple form and contain information as the commission shall prescribe. The records shall be preserved by producers and vintners for a period of five years and shall be offered and submitted for inspection at any reasonable time upon demand of the commission or its duly authorized agent.

(b) For purposes of this section and for any other section of this chapter that relates to recordkeeping or the collection and remittance of assessments from producers, including any section dealing with confidentiality of information received from vintners, the term “vintner” shall include persons in this state outside Mendocino County who otherwise meet the definition of vintner in Section 78839. Those persons shall not be required to pay the vintner assessment established by the commission, but shall collect and remit assessments and reports regarding winegrapes received that were produced in Mendocino County.

article: 6. Assessments


text:
(a) All proprietary and trade secret information obtained by the commission from producers and vintners 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. The Legislature finds and declares that this provision is required to ensure that producer and vintner proprietary and trade secret information shall not be disclosed.

(b) In addition, and notwithstanding any other provision of law, all proprietary or trade secret information developed or gathered pursuant to this chapter 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 other information that give only totals, but excludes individual information, may be disclosed by the commission.

(d) The commission shall determine whether information is proprietary or trade secret and not subject to disclosure. If the commission denies a request for disclosure of this information, the commission shall provide written justification for its decision to the person requesting the information who may appeal the decision of the commission to the secretary.

history: (History: Amended by Stats. 2021, Ch. 615, Sec. 133. (AB 474) Effective January 1, 2022. Operative January 1, 2023, pursuant to Sec. 463 of Stats. 2021, Ch. 615.)

article: 6. Assessments


text:
(a) Any assessment levied by the commission, pursuant to this chapter, is a personal debt of every person so assessed and is due and payable in the time and manner prescribed by the commission. Failure of a vintner to collect the assessment from a producer shall not exempt the vintner from liability nor relieve the producer of the obligation to pay the assessment.

(b) When the producer or vintner is a corporation, general or limited 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 and limited partner in the partnership, and each trustee of the trust. Title to the assessments, shall pass immediately to the commission. When collecting and remitting producer assessments, vintners shall hold the assessments in trust for the benefit of the commission until remitted in the time and manner specified by the commission.

article: 6. Assessments


text: Any person who fails to file a return, or remit 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, 1.5 percent interest per month on the unpaid balance.

article: 6. Assessments


text: In addition to any other penalty imposed, the commission may require any person who fails to submit records or 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


text:
It is unlawful for any person to do any of the following:

(a) Willfully render or furnish a false report, statement, or record required by the commission or to in any way to affect the delivery, receipt, processing, or marketing of winegrapes with the intent to avoid payment of assessments.

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

(c) When engaged in the production, delivery, processing, marketing, or other activities related to winegrapes, wine, or winegrape products, to fail or refuse to furnish the commission, or its duly authorized agents, information concerning the name and address of the persons to whom winegrapes were delivered or from whom winegrapes have been received, and the quantity delivered.

(d) Secrete, destroy, or alter records required to be maintained under this chapter.

article: 7. Violations

path: 22. MARKETING ADVISORY AND PROMOTIONAL AGENCY LAWS > 2. MARKETING ADVISORY AND PROMOTIONAL COUNCILS AND COMMISSIONS > 24.5. Mendocino County Winegrape and Wine Commission > 7. Violations


text: The commission shall establish procedures for the purpose of according individuals aggrieved by its action or determinations an informal hearing before the commission, or before a committee of the commission designated for that 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. Violations