Cal. Code Regs. Tit. 3, § 4952 - Appeals
(a)
Appeals to the commissioner. A respondent may contest a notice of violation or
a lab report issued pursuant to Food and Agricultural Code Section 81006(e)
within 30 calendar days from the date of the notice of violation by submitting
a written request, via email, mailing address, physical address, or website, as
specified in the notice of violation, for a hearing before the commissioner.
(1) Failure to present a timely request for a
hearing constitutes a waiver of the respondent's right to contest the notice of
violation or lab report.
(2) At the
hearing, the person shall be given an opportunity to review the commissioner's
evidence and to present evidence on his or her own behalf.
(3) Within 60 calendar days of the receipt of
a written request for a hearing, the commissioner shall hold a hearing, a
hearing officer assigned by the commissioner shall issue a proposed decision
and order, and the commissioner shall mail notice of the order to the
respondent. The order is effective as of the date on the notice.
(b) Appeals to the Secretary. If
the person upon whom the commissioner issued a notice of violation requested
and appeared at the hearing, the person may appeal the commissioner's decision
to the Secretary within 30 calendar days of the date of receiving a copy of the
commissioner's decision.
(1) To appeal the
commissioner's decision, the appellant shall send a written request to the
Legal Office of Hearings and Appeals of the Department of Food and Agriculture,
1220 N Street, Room 315, Sacramento, California 95814 or via email to
CDFA.LegalOffice@cdfa.ca.gov.
(A) The written
request shall include:
1. a copy of the
commissioner's decision,
2. the
notice of violation,
3. a clear and
concise statement of the basis for the appeal, and
4. the signature of the appellant or his or
her authorized agent.
(2) The appellant shall submit a copy of the
appeal with the commissioner at the same time it is filed with the
Secretary.
(3) Both the appellant
and the commissioner, at the time appellant files the appeal or within 10
calendar days thereafter, may submit the record of the hearing and a written
argument to the Secretary stating the ground for affirming, modifying, or
reversing the commissioner's decision. All documents must be submitted to the
Legal Office of Hearings and Appeals of the California Department of Food and
Agriculture, 1220 N Street, Suite 315, Sacramento, California 95814 or via
email at CDFA.LegalOffice@cdfa.ca.gov.
(4) The department shall schedule an informal
hearing within 45 calendar days from receipt of the request for an informal
hearing. The department shall provide a notice of informal hearing to the
appellant containing the following information:
(A) date, location, and time of the informal
hearing, and
(B) a statement to the
appellant that the appellant may, but need not, be represented by counsel at
any or all stages of the proceedings.
(5) Any objection to the department's
selection of the informal hearing procedure instead of a formal hearing
procedure shall be made in writing to the Legal Office of Hearings and Appeals
and shall be resolved by the hearing officer prior to the hearing.
(6) Hearings shall be presided over and
conducted by a hearing officer designated by the Secretary. In no instance
shall any employee of the Industrial Hemp Program serve as the hearing officer
in any hearing conducted pursuant to this section.
(7) If the hearing officer finds substantial
evidence in the record to support the commissioner's decision, the Secretary
shall affirm the commissioner's decision.
(8) Hearings may be conducted by
teleconference, at the discretion of the hearing officer.
(9) The decision of the hearing officer shall
be in writing and include a statement of the factual legal basis of the
decision.
(10) The decision shall
be issued within 30 calendar days after the conclusion of the hearing and may
be issued orally at the conclusion of the hearing subject to written
confirmation.
(11) The written
decision shall be served on the respondent either by personal service,
facsimile transmission, or email.
(12) The hearing officer's decision shall be
effective immediately upon first articulation under subsection (10) and shall
be final and not appealable to the Secretary or any other officer of the
department.
(13) The person charged
may challenge the hearing officer's decision by filing a writ of administrative
mandamus in the appropriate court pursuant to Code of Civil Procedure Section
1094.5.
(c) The commissioner may deny,
suspend, or revoke a registration for any violation of the Division 24 of the
Food and Agricultural Code or this chapter.
(1) The commissioner shall notify the person
charged with a violation pursuant to the notice requirements of Section
4951(a).
(2) Any person who is noticed of denial,
suspension, or revocation of registration may request a hearing before the
Secretary within 30 calendar days of the date of receiving a copy of the
commissioner's notice.
(3) The
hearing shall be scheduled by the Department consistent with the provisions of
Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2 of the
Government Code, and any applicable regulations enacted pursuant to these
provisions.
(4) Hearings concerning
the denial, suspension, or revocation of a registration shall be conducted
pursuant to Chapter 5 (commencing with Section 11500) Part 1, Division 3, Title
2 of the Government Code.
(5) The
standard of proof to be applied by the Department is preponderance of the
evidence. The commissioner shall have the burden of proof and the burden of
producing evidence.
Notes
2. New section refiled 1-3-2023 as an emergency; operative 1-3-2023 (Register 2023, No. 1). A Certificate of Compliance must be transmitted to OAL by 4-3-2023 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 1-3-2023 order transmitted to OAL 3-29-2023 and filed 5-11-2023 (Register 2023, No. 19).
Note: Authority cited: Sections 407, 81003, 81004, 81004.5 and 81012, Food and Agricultural Code. Reference: Section 81012, Food and Agricultural Code.
2. New section refiled 1-3-2023 as an emergency; operative 1/3/2023 (Register 2023, No. 1). A Certificate of Compliance must be transmitted to OAL by 4-3-2023 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 1-3-2023 order transmitted to OAL 3-29-2023 and filed
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