California Code of Regulations
Title 3 - Food and Agriculture
Division 3 - Economics
Chapter 1 - Fruit and Vegetable Standardization
Subchapter 4 - Fresh Fruits, Nuts and Vegetables
Article 6.5 - Direct Marketing
Section 1392.10 - Administrative Civil Penalties for Direct Marketing

Universal Citation: 3 CA Code of Regs 1392.10

Current through Register 2024 Notice Reg. No. 38, September 20, 2024

When taking enforcement action pursuant to Section 47025 of the California Food and Agricultural Code, the secretary and county agricultural commissioners shall use the provisions of this section to determine the violation class and amount of the penalty and/or the length of the suspension. Repeat violations of the same code section, that occurred within a two-year period from the date of the last violation which resulted in a penalty, shall be escalated to the next violation class.

(a) For the purposes of this article, violation classes are designated as "Serious," "Moderate," and "Minor" using the following definitions:

(1) "Serious". For the purposes of this article, serious violations are repeat or intentional violations. Intentional violations are those which preclude or interfere with enforcement, or cause false, misleading or deceptive business practices. Serious violations include but are not limited to: all repeated moderate violations of the same code section that occurred within a two-year period from the date of the last violation which resulted in a penalty; selling agricultural products not of own production in the defined marketing area where only agricultural products may be sold; falsifying or altering documents or making false statements; refusing inspection by an enforcing officer; buying and reselling agricultural products between certified producers or producers of noncertifiable agricultural products; operating without a valid certificate; and failure to submit quarterly forms and fees to the California Department of Food and Agriculture.
(i) Serious violations are punishable by an administrative civil penalty of not less than four hundred and one dollars ($401) and up to a maximum of one thousand dollars ($1,000) per violation.

(ii) Serious violations are punishable by suspension of certification for a period of not less than six months and not more than 18 months per action.

(2) "Moderate". For the purposes of this article, moderate violations are repeat violations or those which undermine enforcement. Moderate violations include but are not limited to: all repeated minor violations of the same code section that occurred within a two-year period from the date of the last violation which resulted in a penalty; deceptively packing products; mislabeling products; selling nonagricultural products in the defined marketing area where only agricultural products may be sold; using an unapproved scale; failure to meet certification requirements when certified producers are selling on each other's behalf, failure to provide memorandums; and failure to report changes in address, leases, or partnerships to county agricultural commissioner.
(i) Moderate violations are punishable by an administrative civil penalty of not less than one hundred and fifty-one dollars ($151) and up to a maximum of four hundred dollars ($400) per violation.

(3) "Minor". For the purposes of this article, minor violations have minimal adverse effects on the public or equitable competition in the marketplace. Minor violations include but are not limited to: transporting, packing, or selling products that do not meet maturity, quality, or labeling standards, selling an agricultural product combined with a nonagricultural product which materially increases the price of the product in the defined marketing area where only agricultural products may be sold; selling certifiable agricultural products not listed on the certificate, failure to conspicuously post or have in possession the required certificate/registration/signage; and market rules not in compliance, failure to complete product list requirements, and failure to meet market sales and record keeping requirements when certified producers are selling on each other's behalf.
(i) Minor violations are punishable by an administrative civil penalty of not less than fifty dollars ($50) and up to a maximum of one hundred and fifty dollars ($150) per violation.

(b) Tables A and B provide the level of severity of an initial violation and the corresponding penalty range for "serious," "moderate," and "minor" violation classes. The Description of Violation column in Tables A and B are an abbreviated description of the corresponding section in the California Food and Agricultural Code, Division 17. Fruit, Nut and Vegetable Standards; and Title 3, Article 6.5. Direct Marketing, California Code of Regulations.

Table A (Certified Producers) For additional information regarding assessing administrative civil penalties, refer to section 1392.10

FAC Code Section CCR Code Section Description of Violation Minor Violation Class Moderate Violation Class Serious Violation Class Penalty/ Suspension
1. FAC § 47002 - Transport, pack, or sell products that do not meet maturity or quality standards; or closed consumer container requirements (IRQ) X $50 - $150 penalty
2. FAC § 47022 - Prepare, pack, place, deliver for shipment, load, ship, transport or sell any products that do not conform to the provisions of this chapter or the regulations adopted thereunder X $50 - $150 penalty
3. FAC § 47022.1 - Deceptively prepare, pack, place, deliver for shipment, load, ship, transport or sell any products X $151 - $400 penalty
4. FAC § 47022.2 - Mislabeling products; false/misleading statements on products X $151 - $400 penalty
5. FAC § 47022.3 - Falsify documents or make false statements regarding size, maturity, condition, or quality of products offered for sale X $401 - $1,000 penalty and 6 - 18 months suspension
6. FAC § 47022.4 - Unlawfully removing warning tag/notice from product/container affixed by enforcing officer X $401 - $1,000 penalty and 6 - 18 months suspension
7. FAC § 47022.5 - Refusing to submit any container/load/pro ducts for inspection or refuse to stop any vehicle for inspection X $401 - $1,000 penalty and 6 - 18 months suspension
8. FAC § 47022.6 - Refusing to allow inspection of property used in sales/storage /production of agricultural products X $401 - $1,000 penalty and 6 - 18 months suspension
9. FAC § 47022.7 - Altering any document referred t o in this chapter issued by an enforcing officer X $401 - $1,000 penalty and 6 - 18 months suspension
10. FAC § 47002 3 CCR § 1392.1(b) Selling product exempt from size, standard pack, container, and labeling requirements: at a certified farmers' market without being the certified producer or the authorized representative of the certified producer; at an outlet or location without being the certified producer; at a field retail stand/farm stand without being the producer X $401 - $1,000 penalty and 6 - 18 months suspension
11. FAC § 47002 3 CCR § 1392.1(c) Fresh fruits, nuts, vegetables sold for commercial resale that do not comply with all regulations regarding applicable size, standard pack, standard container, and labeling requirements X $50 - $150 penalty
12. FAC § 47002(a) 3 CCR § 1392.1(d) Fresh fruits, nuts, vegetables sold that do not comply with regulations regarding maturity, quality, and consumer package labeling. X $50 - $150 penalty
13. FAC § 47002 3 CCR § 1392.1(e) Selling agricultural products that do not comply with applicable laws and regulations X $50 - $150 penalty
14. FAC § 47000.5 (a)(2) 3 CCR § 1392.2 (k)(1) Selling agricultural products, combined with nonagricultural products or services that materially increases the purchase price of the product in the defined marketing area where only agricultural products may be sold X $50 - $150 penalty
15. FAC § 47020 (c)(1)(A) 3 CCR § 1392.4(a) Producer selling certifiable agricultural product(s) at a certified farmers' market/outlet or location without obtaining a valid certified producer's certificate X $401 - $1,000 penalty and 6 - 18 months suspension
16. FAC § 47002 3 CCR § 1392.4 (a)(3) Certified producer selling certifiable agricultural product(s) at a certified farmers' market/outlet or location they did not produce X $401 - $1,000 penalty and 6 - 18 months suspension
17. FAC § 47020 (c)(2) 3 CCR § 1392.4 (a)(4) Certified producer selling product(s) not listed on their Certified Producer's Certificate X $50 - $150 penalty
18. FAC § 47002 3 CCR § 1392.4 (a)(5) Selling noncertifiable agricultural products producer did not produce, within the defined marketing area where only agricultural products may be sold X $401 - $1,000 penalty and 6 - 18 months suspension
19. FAC § 47004 (b) 3 CCR § 1392.4 (a)(6) Selling nonagricultural products in the defined marketing area where only agricultural products may be sold X $151 - $400 penalty
20. FAC § 47004 (b) 3 CCR § 1392.4(b) Authorized representative of the certified producer selling on behalf of more than one certified producer per certified farmers' market, per market day X $151 - $400 penalty
21. FAC § 47002 3 CCR § 1392.4(c) Certified producer not having a valid Certified Producer's Certificate in possession while selling and transporting certifiable agricultural products X $50 - $150 penalty
22. FAC § 47003 3 CCR § 1392.4(d) Failure to use approved scale or sealed scale X $151 - $400 penalty
23. FAC § 47004 (c)(1) 3 CCR § 1392.4 (e)(1) Certified producer selling on behalf of more than two other certified producers in a 12-month period X $151 - $400 penalty
24. FAC § 47004 (c)(1) 3 CCR § 1392.4 (e)(2) Failure to separate and identify, at the point of sale, one's own products from that of another certified producer for whom one is selling, and conspicuously posting each certified producer's valid certified producer's certificate and signage at a certified farmers' market X $50 - $150 penalty
25. FAC § 47004 (c)(1) 3 CCR § 1392.4 (e)(3) Failure to list (on certified producer's certificate) name of the certified producer for whom the certified producer is conducting sales for X $151 - $400 penalty
26. FAC § 47004 (c)(1) 3 CCR § 1392.4 (e)(4) Failure to list (on certified producer's certificate) the name of the certified producer who is authorized to conduct sales on their behalf X $151 - $400 penalty
27. FAC § 47004 (c)(1) 3 CCR § 1392.4 (e)(5) Certified producer selling/offering for sale product for another certified producer in greater volume than the certified producer is offering for sale X $50 - $150 penalty
28. FAC § 47004 (c)(1) 3 CCR § 1302.4 (e)(6) Certified producer selling/offering for sale the same commodity as another certified producer when selling on their behalf (at same certified farmers' market, on the same day) X 50 - $150 penalty
29. FAC § 47004 (b) 3 CCR § 1392.4 (e)(8) Buying and reselling agricultural products between certified producers (when selling on behalf of another certified producer) X $401 - $1,000 penalty and 6 - 18 months suspension
30. FAC § 47004 (c)(1) 3 CCR § 1392.4 (e)(10) Failure to keep required records for a period of not less than three years: when selling certified agricultural products on behalf of another certified producer; or whose certified agricultural products are sold by another certified producer X $50 - $150 penalty
31. FAC § 47020 (c)(2) 3 CCR § 1392.4 (e)(11) Failure to produce for inspection records upon demand of an enforcing officer X $50 - $150 penalty
32. FAC § 47004 (c)(3) 3 CCR § 1392.4(f) Failure to post organic registration and/or documentation of organic certification when representing product as organic X $50 - $150 penalty
33. FAC § 47004 (c)(3) 3 CCR § 1392.4(g) Failure to post organic registration and/or documentation of organic certification when selling for another certified producer representing product as organic X $50 - $150 penalty
34. FAC § 47002 (a) 3 CCR § 1392.4 (h) Sale of sprouts with less than 50% of seeds/legumes/nuts having emerged X $50 - $150 penalty
35. FAC § 47002 (e) 3 CCR § 1392.4(i) Not providing memorandum with required information X $151 - $400 penalty
36. FAC § 47002 (e) 3 CCR § 1392.4(j) Failure to provide memorandum, bill of sale, or container label when a certified producer sells a single agricultural commodity in excess of 25 lbs. X $151 - $400 penalty
37. FAC § 47020 (c)(1)(A) 3 CCR § 1392.4 (k)(1) Failure to conspicuously post valid certified producer's certificate at point of sale X $50 - $150 penalty
38. FAC § 47004 (c)(1) 3 CCR § 1392.4 (k)(2)(i), (k)(2)(ii), (k)(2)(iii) Failure to clearly and conspicuously post signage stating: farm/ranch name as listed on valid certified producer's certificate and dba (if applicable) as listed on valid certified producer's certificate; production county as listed on valid certified producer's certificate; "We Grow What We Sell" or similar phrase X $50 - $150 penalty
39. FAC § 47004 (c)(2) 3 CCR § 1392.4 (l) Does not have required documentation on processed products X $151 - $400 penalty
40. FAC § 47020 (c)(2) 3 CCR § 1392.5 (a)(2) Failure to report to county agricultural commissioner change in business address within 30 days X $151 - $400 penalty
41. FAC § 47022.6 3 CCR § 1392.5(c) Refusing to provide documentation upon request of an enforcing officer or market manager X $401 - $1,000 penalty and 6 - 18 months suspension
42. FAC § 47020 (c)(2) 3 CCR § 1392.9.1 (d) Failure to immediately report to county agricultural commissioner any change in Partnership Agreement and/or surrender invalid certificates to issuing county agricultural commissioner X $151 - $400 penalty
43. FAC § 47020 (c)(2) 3 CCR § 1392.9.2 (d) Failure to immediately report to county agricultural commissioner any change in Farm Lease Agreement and/or surrender invalid certificates to issuing county agricultural commissioner X $151 - $400 penalty

Table B (Market Operators) For additional information regarding assessing administrative civil penalties, refer to section 1392.10

FAC Code Section CCR Code Section Description of Violation Minor Violation Class Moderate Violation Class Serious Violation Class Penalty/ Suspension
1. FAC § 47004(e) - Allowing the sale/distribution of fresh whole fruit, nuts, vegetables, cultivated mushrooms, herbs, or flowers by vendors sselling in the separate sales activity that is concurrently operated, adjacent to, or contiguous, to the certified farmers' market X $401 - $1,000 penalty and 6 - 18 months suspension
2. FAC § 47022.6 - Refusing to allow inspection of property used in sales of agricultural products X $401 - $1,000 penalty and 6 - 18 months suspension
3. FAC § 47022.7 - Altering any document referred to in this chapter issued by an enforcing officer X $401 - $1,000 penalty and 6 - 18 months suspension
4. FAC § 47020(a) 3 CCR § 1392.6 (a)(3) Failure to report to county agricultural commissioner change in mailing address within 30 days X $151 - $400 penalty
5. FAC § 47004(g) 3 CCR § 1392.6 (f) Market rules not in compliance (if rules were established) X $50 - $150 penalty
6. FAC § 47004(f); § 47021(a) 3 CCR § 1392. 8.1. Failure to remit quarterly forms and/or fees or failure to remit quarterly forms with required information X $401 - $1,000 penalty and 6 - 18 months suspension
7. FAC § 47004(b) 3 CCR § 1392.9 (a)(1) Failure to ensure each seller of agricultural products is a producer, a certified producer, or an authorized representative of the certified producer X $50 - $150 penalty
8. FAC § 47004(b) 3 CCR § 1392.9 (a)(2) Allowing the sale of nonagricultural products in the defined marketing areaa where only agricultural products may be sold X $151 - $400 penalty
9. FAC § 47003 3 CCR § 1392.9 (a)(3) Failure to ensure the certified producer has in the certified producer's possession a valid certified producer's certificate that is posted at the point of sale X $50 - $150 penalty
10. FAC § 47003 3 CCR § 1392.9 (a)(4) Failure to ensure each certifiable agricultural product in possession of the certified producer is listed on the certified producer's valid Certified Producer's Certificate X $50 - $150 penalty
11. FAC § 47002; § 47004 (c)(2) 3 CCR § 1392.9 (a)(5) Failure to ensure producers are selling only noncertifiable agricultural products produced in accordance with section 1392.4 X $50 - $150 penalty
12. FAC § 47004 (c)(1) 3 CCR § 1392.9 (a)(6) Failure to ensure that (when a certified producer is selling on behalf of another certified producer) the certified producer separates and identifies, at the point of sale, each certified producer's products, and conspicuously posts each certified producer's valid certified producer's certificate and signage at a certified farmers' market X $50 - $150 penalty
13. FAC § 47004(f) 3 CCR § 1392.9(b) Failure to collecy itemized list of all products sold from each certified producer or the authorized representative of the certified producer within 48 hours of the conclusion of each market day X $50 - $150 penalty
14. FAC § 47004(f) 3 CCR § 1392.9 (b)(1) Failure to keep itemized list of all products sold (from certified producer) for not less than 18 months X $50 - $150 penalty
15. FAC § 47004(f) 3 CCR § 1392.9 (b)(2) Failure to submit a certified producer's itemized product list for inspection upon the request of an enforcing officer within 72 hours X $50 - $150 penalty
16. FAC § 47020(a) 3 CCR § 1392.9(c) Operating a certified farmers' market without possession of a current, valid Certified Farmers' Market Certificate X $401 - $1,000 penalty and 6 - 18 months suspension
17. FAC § 47022.6 3 CCR § 1392.9(d) Failure to present, upon request of an enforcing officer, a current, valid Certified Farmers' Market Certificate for review during operation of a certified farmers' market X $50 - $150 penalty

1. Repealer with new subsections (a)-(c) and NOTE filed 7-26-91; operative 7-26-91 pursuant to Government Code section 11346.2(d) (Register 91, No. 47).
2. Repealer and new section filed 9-8-2020; operative 1-1-2021 (Register 2020, No. 37). Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20 and an additional 60 calendar days pursuant to Executive Order N-66-20.
3. Editorial correction of HISTORY 2 (Register 2020, No. 43).

Note: Authority cited: Sections 407 and 47001, Food and Agricultural Code. Reference: Sections 42651, 43003 and 47025, Food and Agricultural Code.

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