56381. (a) If, in the opinion of the department, there appears to
be reasonable grounds for investigating a complaint or notification
made under the provisions of this chapter, the department shall
investigate the complaint or notification. In the course of the
investigation, if the department determines that violations of this
chapter are indicated other than alleged violations specified in the
complaint or notification that served as the basis for the
investigation, the department may expand the investigation to include
the additional violations.
(b) In the opinion of the department, if an investigation
substantiates the existence of violations of this chapter, the
department may cause a complaint to be issued.
(c) The investigation may include, but shall not be construed to
require, examinations and audits of the books and records of any
licensee pertaining to the solvency of the licensee, or to the
purchase or handling of and accounting for any farm product purchased
or received on consignment from another licensee or the producer, or
handled as a brokerage transaction. The department may examine and
audit all pertinent books, records, weight certificates, receipts,
ledgers, journals, papers, contracts, bank statements, canceled
checks, and other documents of the licensee that show or tend to show
facts regarding the financial condition and the number and status of
accounts of growers and others who are doing business with the
licensee.
56382. If the examination discloses evidence of any violation of
this chapter, the department may issue a complaint detailing the
charges and the discipline sought in accordance with this chapter.
56382.5. (a) An aggrieved grower or licensee with a complaint that
is not subject to the federal Packers and Stockyards Act, 1921 (7
U.S.C. Sec. 181 et seq.) or the federal Perishable Agricultural
Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.) may seek
resolution of that complaint by filing a complaint with the
department within nine months from the date a complete account of
sales was due. The complaint shall be accompanied by two copies of
all documents in the complainant's possession that are relevant to
establishing the complaint, a filing fee of one hundred dollars
($100), and a written denial of jurisdiction from the appropriate
federal agency unless the commodity involved clearly does not fall
under the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181
et seq.) or the federal Perishable Agricultural Commodities Act,
1930 (7 U.S.C. Sec. 499a et seq.). Within five business days of
receipt of a signed and verified complaint, the filing fee, and the
denials of federal jurisdiction, the department shall serve the
verified complaint on the respondent. Service shall be by certified
mail. The department, the secretary, the department's employees, the
department's agents, the boards and commissions associated with the
department, their employees or agents, and the State of California
are not parties to the dispute in a proceeding brought under this
section.
(b) The respondent served shall answer within 30 calendar days of
service. Respondent's response shall include two copies of all
relevant documentation of the transactions referred to in the
verified complaint.
(c) Within 30 calendar days of receipt of the answer, the
department shall issue to both parties a written factual summary on
the basis of the documents that have been filed with the department.
(d) If a settlement is not reached within 30 calendar days after
the department's summary is issued, the department, on request of the
claimant or respondent and upon payment of a filing fee of three
hundred dollars ($300), shall schedule alternate dispute resolution,
to commence within 90 calendar days. The department shall serve both
parties with a notice of hearing, which sets out the time, date,
street address, room number, telephone number, and name of the
hearing officer. Service of the notice of hearing shall be by
certified mail.
(e) The alternate dispute resolution shall proceed as follows:
(1) The hearing shall be conducted by hearing officers in
accordance with standard procedures promulgated by the American
Arbitration Association or other acceptable alternative dispute
resolution entities.
(2) The hearing officers shall be familiar with the type of issues
presented by such claims, but need not be attorneys.
(3) The sole parties to the proceedings shall be the complainant
and the respondent.
(4) The disputes, claims, and interests of the department or the
State of California are not within the jurisdiction of the
proceedings.
(5) The validity of a regulation of the department or order
promulgated pursuant to this code is not within the jurisdiction of
the proceedings.
(6) Law and motion matters shall be handled by the assigned
hearing officer.
(7) The hearing officer has no authority to enter into settlement
discussions except upon stipulation of the parties involved.
(8) The parties may represent themselves in propria persona or may
be represented by a licensed attorney at law. A party may not be
represented by a representative who is not licensed to practice law.
(9) To the extent of any conflict between any provision of Chapter
4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title
2 of the Government Code and this article, this article shall
prevail.
(10) The hearing officer may order a review of records or an audit
of records by a certified public accountant. The review or audit
shall be conducted under generally accepted auditing standards of the
American Institute of Certified Public Accountants, and upon
completion of the review or audit the nature and extent of the review
or audit shall be disclosed to the parties by the auditor in the
audit report. The audit report shall disclose the number of
transactions reviewed and the rationale for selecting those
transactions. The department shall advance the costs of the audit or
review of records, but the hearing officer shall apportion the costs
at the conclusion of the hearing. The department shall pursue
repayment in accordance with the hearing officer's apportionment and
may bring an action in a court of competent jurisdiction to recover
funds advanced. Nothing in this subdivision shall be construed to
require the department to pursue any specific remedy or to prohibit
the department from accepting a reasonable repayment plan.
(f) The hearing officer shall render a written decision within 60
days of submission of the case for decision. In addition to rendering
a written finding as to what is owed by whom on the substantive
allegations of the complaint, the hearing officer shall decide
whether or not to order the full cost of the alternative dispute
resolution proceeding, and in what ratio or order the losing party is
to pay the costs of the proceeding. For these purposes, the cost of
the alternative dispute resolution proceeding does not include the
filing fee, the parties' attorney fees, or expert witness fees. The
hearing officer may also award a sanction against a complainant for
filing a frivolous complaint or against a respondent for unreasonable
delay tactics, bad faith bargaining, or resistance to the claim, of
either 10 percent of the amount of the award or a specific amount, up
to a maximum of one thousand dollars ($1,000). Any sanction award
shall not be deemed to be res judicata or collateral estoppel in any
subsequent case in which either the complainant or respondent is
charged with filing a frivolous complaint, unreasonable delay
tactics, bad faith bargaining, or resistance to the claim. The
department may consider the written decision of the hearing officer
in determining any related licensing action. The written decision of
the hearing officer may be introduced as evidence at a court
proceeding.
(g) Nothing in this section prohibits the parties to the dispute
from settling their dispute prior to, during, or after the hearing.
(h) Nothing in this section alters, precludes, or conditions the
exercise, during any stage of the proceedings provided by this
chapter, of any other rights to relief a party may have through
petition to a court of competent jurisdiction, including, but not
limited to, small claims court.
56382.8. (a) In addition to all other complaint procedures provided
for in this chapter, any aggrieved grower or licensee with a
complaint that is not subject to the federal Packers and Stockyards
Act, 1921 (7 U.S.C. Sec. 181 et seq.) or the federal Perishable
Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.) and
for which the claim for damages does not exceed thirty thousand
dollars ($30,000), may file a verified complaint with the department,
subject to expedited review and settlement. Informal complaints may
be made for damages, but not for disciplinary action, although the
department may issue a complaint pursuant to Section 56382 as the
basis for disciplinary action. Informal complaints must be received
by the department within nine months of when the claimant ought to
have reasonably known of its existence, as required under Section
56446.
(b) Complaints must be submitted to the department in writing and
verified, and may be transmitted via United States mail, overnight
delivery, or by facsimile transmission, setting forth the essential
details of the transactions complained of, including the following:
(1) The name and address of each party to the dispute, of the
agent representing him or her in the transaction involved, if any, as
well as the party's counsel, if any.
(2) The quantity and quality or grade of each kind of produce
shipped if a grade or quality is the basis of payment.
(3) The date of shipment.
(4) The carrier identification if a carrier was used.
(5) The shipping and destination points.
(6) If a sale, the date, sales price, and amount actually
received.
(7) If a consignment, the date, reported proceeds, gross, and net.
(8) A precise estimate of the amount of damages claimed, if known.
(9) A brief statement of material facts in dispute, including
terms of applicable contracts.
(10) The amount of damages being sought.
(c) The complaint shall also, so far as practicable, be
accompanied by true copies of all available papers relating to the
transaction complained about, including shipping documents, letters,
telegrams, invoices, manifests, inspection certificates, accountings,
accounts of sale, and any special contracts or agreements.
(d) The informal complaint shall be accompanied by a nonrefundable
filing fee of one hundred dollars ($100) as required under Section
56382.5.
(e) Upon confirmation that a complaint has been properly and
timely filed, including the securing of a denial letter from the
United States Department of Agriculture under the federal Packers and
Stockyards Act, 1921, or the federal Perishable Agricultural
Commodities Act, 1930, the department shall send a copy of the
complaint to the respondent by certified mail and advise the
respondent that it shall have 30 days from the department's mailing
of the complaint in which to answer the complaint. The answer shall
contain a brief response to the complaint, including the respondent's
position with respect to the claimant's description of matters in
dispute, the relevant facts, and the remedy sought, together with a
description of any claims it may have against the complainant, in the
same manner as claims are to be set out in the complaint. The
respondent shall also include any pertinent documentation relevant to
its defense with its answer.
(f) After receipt of the answer from the respondent, the
department shall informally consult with the parties to clarify the
nature of the dispute and to facilitate the exchange of information
between the parties in order to assist the parties in reaching an
expedited informal resolution of the dispute. The informal
consultation process will last no longer than 60 days. The parties
shall cooperate fully with the department and shall participate in
the informal consultation process.
(g) If the informal consultation process provided for in this
section does not result in resolution of the dispute, the complainant
may then pursue arbitration against the licensee and the complaint
and any counterclaim will be fully and finally adjudicated and
resolved by a decision of an arbitrator under expedited arbitration
procedures as follows:
(1) The complainant shall submit a fee of six hundred dollars
($600) to the department made payable to the arbitrator, arbitration
service, or payee designated by the department for the arbitration
and any counterclaimant shall submit a fee of six hundred dollars
($600) to the department for any counterclaim that is filed also made
payable to the arbitrator, arbitration service, or payee designated
by the department.
(2) An arbitrator from a panel of arbitrators registered with the
department shall be selected by the department and confirmed by both
the complainant and the respondent or counterclaimant after the
prospective arbitrator has certified that he or she has no known
conflict of interest in the dispute and after each party has had an
opportunity to lodge an objection for cause to the appointment of the
named arbitrator within five days of its receipt of the notice of
appointment of the arbitrator. The notice of appointment shall be in
writing and may be transmitted via overnight delivery or by facsimile
transmission.
(3) Upon confirmation of the appointment of the arbitrator the
department will transmit to the arbitrator the verified complaint,
the statement of defense, and the statement of counterclaim, if one
is filed.
(4) The complainant shall have 30 days after receipt of the notice
of appointment of the arbitrator to submit to the department in
writing sworn declarations by witnesses and any other documentary
evidence not previously submitted, as well as legal authorities and
arguments.
(5) Within five days of the department's receipt of the
complainant's written submission the department shall transmit a copy
of the complainant's written submission to the respondent. The
respondent shall have 30 days from the receipt of the complainant's
written submission to submit to the department in writing responsive
declarations by witnesses or other documentary evidence not
previously submitted, as well as any legal authorities and arguments.
The respondent's written submission in support of its counterclaim,
if any, must be sent to the department at the same time as the
responsive submission.
(6) If there is a counterclaim filed, within five days of the
department's receipt of the counterclaimant's written submission the
department shall transmit a copy of the counterclaimant's written
submission to the complainant. The complainant shall have 10 days
from the receipt of the counterclaimant's written submission to
submit any witness statements, evidence, or legal authorities and
arguments in reply.
(7) Once all periods for submission of evidence and arguments have
expired and the department has transmitted all written submissions
to the arbitrator, the case and all evidence to be considered by the
arbitrator shall be deemed to be submitted.
(8) The arbitrator may, in the interest of justice, briefly extend
the time periods for written submissions by either party.
(9) The arbitrator shall issue his or her arbitration decision and
award in writing within 30 days after the case has been submitted
for a decision. This time period may be extended by the arbitrator
if, in his or her judgment, clarification of the evidence submitted
is required from either the complainant, the respondent or
counterclaimant, or both.
(10) No hearings or live testimony shall be conducted under the
expedited arbitration procedures.
(11) The arbitrator shall award interest at the legal rate to be
paid in addition to any damages that are awarded and the arbitrator
may award the recovery of costs to one party to the arbitration or
apportion costs between the parties as he or she deems appropriate.
Costs may include filing fees, mediation fees and expenses, fees or
expenses incurred by the department, and fees paid to expert
witnesses, auditors, or inspectors, but not attorney's fees, unless
there has been an agreement by the parties that the prevailing party
in any dispute shall be entitled to recover reasonable attorney's
fees as part of any award for damages, and in that case, the
arbitrator may award reasonable attorney's fees to the prevailing
party.
(h) Either party to an expedited arbitration proceeding conducted
pursuant to this section may bring an action in any California court
of competent jurisdiction to enforce any awards for damages made
pursuant to this section. If an enforcement action is necessary to
secure payment of awards for damages, the party initiating the
enforcement proceeding shall be entitled to recover all additional
expenses, costs, and attorney's fees incurred in connection with that
proceeding.
(i) The department shall retain jurisdiction, as provided for
under Section 56445, over any matter in which a licensee refuses to
pay or otherwise comply with an arbitrator's decision conducted
pursuant to the expedited arbitration procedures as set forth herein,
and may immediately commence an action to revoke the license of the
licensee.
(j) A complainant may enforce his or her rights through the
verified complaint and expedited arbitration process as provided
herein, or by a civil action brought in any court of competent
jurisdiction. This section shall in no way abridge, preclude, or
alter other remedies available to the parties now existing under
common law or by statute, and the provisions set forth herein are in
addition to those other remedies.
56383. The failure or refusal of any licensee to produce and make
available to the director any such books or records, or otherwise to
obstruct such examination or audit, is a good and sufficient ground
for the suspension or revocation of his license.
56381. (a) If, in the opinion of the department, there appears to
be reasonable grounds for investigating a complaint or notification
made under the provisions of this chapter, the department shall
investigate the complaint or notification. In the course of the
investigation, if the department determines that violations of this
chapter are indicated other than alleged violations specified in the
complaint or notification that served as the basis for the
investigation, the department may expand the investigation to include
the additional violations.
(b) In the opinion of the department, if an investigation
substantiates the existence of violations of this chapter, the
department may cause a complaint to be issued.
(c) The investigation may include, but shall not be construed to
require, examinations and audits of the books and records of any
licensee pertaining to the solvency of the licensee, or to the
purchase or handling of and accounting for any farm product purchased
or received on consignment from another licensee or the producer, or
handled as a brokerage transaction. The department may examine and
audit all pertinent books, records, weight certificates, receipts,
ledgers, journals, papers, contracts, bank statements, canceled
checks, and other documents of the licensee that show or tend to show
facts regarding the financial condition and the number and status of
accounts of growers and others who are doing business with the
licensee.
56382. If the examination discloses evidence of any violation of
this chapter, the department may issue a complaint detailing the
charges and the discipline sought in accordance with this chapter.
56382.5. (a) An aggrieved grower or licensee with a complaint that
is not subject to the federal Packers and Stockyards Act, 1921 (7
U.S.C. Sec. 181 et seq.) or the federal Perishable Agricultural
Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.) may seek
resolution of that complaint by filing a complaint with the
department within nine months from the date a complete account of
sales was due. The complaint shall be accompanied by two copies of
all documents in the complainant's possession that are relevant to
establishing the complaint, a filing fee of one hundred dollars
($100), and a written denial of jurisdiction from the appropriate
federal agency unless the commodity involved clearly does not fall
under the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181
et seq.) or the federal Perishable Agricultural Commodities Act,
1930 (7 U.S.C. Sec. 499a et seq.). Within five business days of
receipt of a signed and verified complaint, the filing fee, and the
denials of federal jurisdiction, the department shall serve the
verified complaint on the respondent. Service shall be by certified
mail. The department, the secretary, the department's employees, the
department's agents, the boards and commissions associated with the
department, their employees or agents, and the State of California
are not parties to the dispute in a proceeding brought under this
section.
(b) The respondent served shall answer within 30 calendar days of
service. Respondent's response shall include two copies of all
relevant documentation of the transactions referred to in the
verified complaint.
(c) Within 30 calendar days of receipt of the answer, the
department shall issue to both parties a written factual summary on
the basis of the documents that have been filed with the department.
(d) If a settlement is not reached within 30 calendar days after
the department's summary is issued, the department, on request of the
claimant or respondent and upon payment of a filing fee of three
hundred dollars ($300), shall schedule alternate dispute resolution,
to commence within 90 calendar days. The department shall serve both
parties with a notice of hearing, which sets out the time, date,
street address, room number, telephone number, and name of the
hearing officer. Service of the notice of hearing shall be by
certified mail.
(e) The alternate dispute resolution shall proceed as follows:
(1) The hearing shall be conducted by hearing officers in
accordance with standard procedures promulgated by the American
Arbitration Association or other acceptable alternative dispute
resolution entities.
(2) The hearing officers shall be familiar with the type of issues
presented by such claims, but need not be attorneys.
(3) The sole parties to the proceedings shall be the complainant
and the respondent.
(4) The disputes, claims, and interests of the department or the
State of California are not within the jurisdiction of the
proceedings.
(5) The validity of a regulation of the department or order
promulgated pursuant to this code is not within the jurisdiction of
the proceedings.
(6) Law and motion matters shall be handled by the assigned
hearing officer.
(7) The hearing officer has no authority to enter into settlement
discussions except upon stipulation of the parties involved.
(8) The parties may represent themselves in propria persona or may
be represented by a licensed attorney at law. A party may not be
represented by a representative who is not licensed to practice law.
(9) To the extent of any conflict between any provision of Chapter
4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title
2 of the Government Code and this article, this article shall
prevail.
(10) The hearing officer may order a review of records or an audit
of records by a certified public accountant. The review or audit
shall be conducted under generally accepted auditing standards of the
American Institute of Certified Public Accountants, and upon
completion of the review or audit the nature and extent of the review
or audit shall be disclosed to the parties by the auditor in the
audit report. The audit report shall disclose the number of
transactions reviewed and the rationale for selecting those
transactions. The department shall advance the costs of the audit or
review of records, but the hearing officer shall apportion the costs
at the conclusion of the hearing. The department shall pursue
repayment in accordance with the hearing officer's apportionment and
may bring an action in a court of competent jurisdiction to recover
funds advanced. Nothing in this subdivision shall be construed to
require the department to pursue any specific remedy or to prohibit
the department from accepting a reasonable repayment plan.
(f) The hearing officer shall render a written decision within 60
days of submission of the case for decision. In addition to rendering
a written finding as to what is owed by whom on the substantive
allegations of the complaint, the hearing officer shall decide
whether or not to order the full cost of the alternative dispute
resolution proceeding, and in what ratio or order the losing party is
to pay the costs of the proceeding. For these purposes, the cost of
the alternative dispute resolution proceeding does not include the
filing fee, the parties' attorney fees, or expert witness fees. The
hearing officer may also award a sanction against a complainant for
filing a frivolous complaint or against a respondent for unreasonable
delay tactics, bad faith bargaining, or resistance to the claim, of
either 10 percent of the amount of the award or a specific amount, up
to a maximum of one thousand dollars ($1,000). Any sanction award
shall not be deemed to be res judicata or collateral estoppel in any
subsequent case in which either the complainant or respondent is
charged with filing a frivolous complaint, unreasonable delay
tactics, bad faith bargaining, or resistance to the claim. The
department may consider the written decision of the hearing officer
in determining any related licensing action. The written decision of
the hearing officer may be introduced as evidence at a court
proceeding.
(g) Nothing in this section prohibits the parties to the dispute
from settling their dispute prior to, during, or after the hearing.
(h) Nothing in this section alters, precludes, or conditions the
exercise, during any stage of the proceedings provided by this
chapter, of any other rights to relief a party may have through
petition to a court of competent jurisdiction, including, but not
limited to, small claims court.
56382.8. (a) In addition to all other complaint procedures provided
for in this chapter, any aggrieved grower or licensee with a
complaint that is not subject to the federal Packers and Stockyards
Act, 1921 (7 U.S.C. Sec. 181 et seq.) or the federal Perishable
Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.) and
for which the claim for damages does not exceed thirty thousand
dollars ($30,000), may file a verified complaint with the department,
subject to expedited review and settlement. Informal complaints may
be made for damages, but not for disciplinary action, although the
department may issue a complaint pursuant to Section 56382 as the
basis for disciplinary action. Informal complaints must be received
by the department within nine months of when the claimant ought to
have reasonably known of its existence, as required under Section
56446.
(b) Complaints must be submitted to the department in writing and
verified, and may be transmitted via United States mail, overnight
delivery, or by facsimile transmission, setting forth the essential
details of the transactions complained of, including the following:
(1) The name and address of each party to the dispute, of the
agent representing him or her in the transaction involved, if any, as
well as the party's counsel, if any.
(2) The quantity and quality or grade of each kind of produce
shipped if a grade or quality is the basis of payment.
(3) The date of shipment.
(4) The carrier identification if a carrier was used.
(5) The shipping and destination points.
(6) If a sale, the date, sales price, and amount actually
received.
(7) If a consignment, the date, reported proceeds, gross, and net.
(8) A precise estimate of the amount of damages claimed, if known.
(9) A brief statement of material facts in dispute, including
terms of applicable contracts.
(10) The amount of damages being sought.
(c) The complaint shall also, so far as practicable, be
accompanied by true copies of all available papers relating to the
transaction complained about, including shipping documents, letters,
telegrams, invoices, manifests, inspection certificates, accountings,
accounts of sale, and any special contracts or agreements.
(d) The informal complaint shall be accompanied by a nonrefundable
filing fee of one hundred dollars ($100) as required under Section
56382.5.
(e) Upon confirmation that a complaint has been properly and
timely filed, including the securing of a denial letter from the
United States Department of Agriculture under the federal Packers and
Stockyards Act, 1921, or the federal Perishable Agricultural
Commodities Act, 1930, the department shall send a copy of the
complaint to the respondent by certified mail and advise the
respondent that it shall have 30 days from the department's mailing
of the complaint in which to answer the complaint. The answer shall
contain a brief response to the complaint, including the respondent's
position with respect to the claimant's description of matters in
dispute, the relevant facts, and the remedy sought, together with a
description of any claims it may have against the complainant, in the
same manner as claims are to be set out in the complaint. The
respondent shall also include any pertinent documentation relevant to
its defense with its answer.
(f) After receipt of the answer from the respondent, the
department shall informally consult with the parties to clarify the
nature of the dispute and to facilitate the exchange of information
between the parties in order to assist the parties in reaching an
expedited informal resolution of the dispute. The informal
consultation process will last no longer than 60 days. The parties
shall cooperate fully with the department and shall participate in
the informal consultation process.
(g) If the informal consultation process provided for in this
section does not result in resolution of the dispute, the complainant
may then pursue arbitration against the licensee and the complaint
and any counterclaim will be fully and finally adjudicated and
resolved by a decision of an arbitrator under expedited arbitration
procedures as follows:
(1) The complainant shall submit a fee of six hundred dollars
($600) to the department made payable to the arbitrator, arbitration
service, or payee designated by the department for the arbitration
and any counterclaimant shall submit a fee of six hundred dollars
($600) to the department for any counterclaim that is filed also made
payable to the arbitrator, arbitration service, or payee designated
by the department.
(2) An arbitrator from a panel of arbitrators registered with the
department shall be selected by the department and confirmed by both
the complainant and the respondent or counterclaimant after the
prospective arbitrator has certified that he or she has no known
conflict of interest in the dispute and after each party has had an
opportunity to lodge an objection for cause to the appointment of the
named arbitrator within five days of its receipt of the notice of
appointment of the arbitrator. The notice of appointment shall be in
writing and may be transmitted via overnight delivery or by facsimile
transmission.
(3) Upon confirmation of the appointment of the arbitrator the
department will transmit to the arbitrator the verified complaint,
the statement of defense, and the statement of counterclaim, if one
is filed.
(4) The complainant shall have 30 days after receipt of the notice
of appointment of the arbitrator to submit to the department in
writing sworn declarations by witnesses and any other documentary
evidence not previously submitted, as well as legal authorities and
arguments.
(5) Within five days of the department's receipt of the
complainant's written submission the department shall transmit a copy
of the complainant's written submission to the respondent. The
respondent shall have 30 days from the receipt of the complainant's
written submission to submit to the department in writing responsive
declarations by witnesses or other documentary evidence not
previously submitted, as well as any legal authorities and arguments.
The respondent's written submission in support of its counterclaim,
if any, must be sent to the department at the same time as the
responsive submission.
(6) If there is a counterclaim filed, within five days of the
department's receipt of the counterclaimant's written submission the
department shall transmit a copy of the counterclaimant's written
submission to the complainant. The complainant shall have 10 days
from the receipt of the counterclaimant's written submission to
submit any witness statements, evidence, or legal authorities and
arguments in reply.
(7) Once all periods for submission of evidence and arguments have
expired and the department has transmitted all written submissions
to the arbitrator, the case and all evidence to be considered by the
arbitrator shall be deemed to be submitted.
(8) The arbitrator may, in the interest of justice, briefly extend
the time periods for written submissions by either party.
(9) The arbitrator shall issue his or her arbitration decision and
award in writing within 30 days after the case has been submitted
for a decision. This time period may be extended by the arbitrator
if, in his or her judgment, clarification of the evidence submitted
is required from either the complainant, the respondent or
counterclaimant, or both.
(10) No hearings or live testimony shall be conducted under the
expedited arbitration procedures.
(11) The arbitrator shall award interest at the legal rate to be
paid in addition to any damages that are awarded and the arbitrator
may award the recovery of costs to one party to the arbitration or
apportion costs between the parties as he or she deems appropriate.
Costs may include filing fees, mediation fees and expenses, fees or
expenses incurred by the department, and fees paid to expert
witnesses, auditors, or inspectors, but not attorney's fees, unless
there has been an agreement by the parties that the prevailing party
in any dispute shall be entitled to recover reasonable attorney's
fees as part of any award for damages, and in that case, the
arbitrator may award reasonable attorney's fees to the prevailing
party.
(h) Either party to an expedited arbitration proceeding conducted
pursuant to this section may bring an action in any California court
of competent jurisdiction to enforce any awards for damages made
pursuant to this section. If an enforcement action is necessary to
secure payment of awards for damages, the party initiating the
enforcement proceeding shall be entitled to recover all additional
expenses, costs, and attorney's fees incurred in connection with that
proceeding.
(i) The department shall retain jurisdiction, as provided for
under Section 56445, over any matter in which a licensee refuses to
pay or otherwise comply with an arbitrator's decision conducted
pursuant to the expedited arbitration procedures as set forth herein,
and may immediately commence an action to revoke the license of the
licensee.
(j) A complainant may enforce his or her rights through the
verified complaint and expedited arbitration process as provided
herein, or by a civil action brought in any court of competent
jurisdiction. This section shall in no way abridge, preclude, or
alter other remedies available to the parties now existing under
common law or by statute, and the provisions set forth herein are in
addition to those other remedies.
56383. The failure or refusal of any licensee to produce and make
available to the director any such books or records, or otherwise to
obstruct such examination or audit, is a good and sufficient ground
for the suspension or revocation of his license.
56381. (a) If, in the opinion of the department, there appears to
be reasonable grounds for investigating a complaint or notification
made under the provisions of this chapter, the department shall
investigate the complaint or notification. In the course of the
investigation, if the department determines that violations of this
chapter are indicated other than alleged violations specified in the
complaint or notification that served as the basis for the
investigation, the department may expand the investigation to include
the additional violations.
(b) In the opinion of the department, if an investigation
substantiates the existence of violations of this chapter, the
department may cause a complaint to be issued.
(c) The investigation may include, but shall not be construed to
require, examinations and audits of the books and records of any
licensee pertaining to the solvency of the licensee, or to the
purchase or handling of and accounting for any farm product purchased
or received on consignment from another licensee or the producer, or
handled as a brokerage transaction. The department may examine and
audit all pertinent books, records, weight certificates, receipts,
ledgers, journals, papers, contracts, bank statements, canceled
checks, and other documents of the licensee that show or tend to show
facts regarding the financial condition and the number and status of
accounts of growers and others who are doing business with the
licensee.
56382. If the examination discloses evidence of any violation of
this chapter, the department may issue a complaint detailing the
charges and the discipline sought in accordance with this chapter.
56382.5. (a) An aggrieved grower or licensee with a complaint that
is not subject to the federal Packers and Stockyards Act, 1921 (7
U.S.C. Sec. 181 et seq.) or the federal Perishable Agricultural
Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.) may seek
resolution of that complaint by filing a complaint with the
department within nine months from the date a complete account of
sales was due. The complaint shall be accompanied by two copies of
all documents in the complainant's possession that are relevant to
establishing the complaint, a filing fee of one hundred dollars
($100), and a written denial of jurisdiction from the appropriate
federal agency unless the commodity involved clearly does not fall
under the federal Packers and Stockyards Act, 1921 (7 U.S.C. Sec. 181
et seq.) or the federal Perishable Agricultural Commodities Act,
1930 (7 U.S.C. Sec. 499a et seq.). Within five business days of
receipt of a signed and verified complaint, the filing fee, and the
denials of federal jurisdiction, the department shall serve the
verified complaint on the respondent. Service shall be by certified
mail. The department, the secretary, the department's employees, the
department's agents, the boards and commissions associated with the
department, their employees or agents, and the State of California
are not parties to the dispute in a proceeding brought under this
section.
(b) The respondent served shall answer within 30 calendar days of
service. Respondent's response shall include two copies of all
relevant documentation of the transactions referred to in the
verified complaint.
(c) Within 30 calendar days of receipt of the answer, the
department shall issue to both parties a written factual summary on
the basis of the documents that have been filed with the department.
(d) If a settlement is not reached within 30 calendar days after
the department's summary is issued, the department, on request of the
claimant or respondent and upon payment of a filing fee of three
hundred dollars ($300), shall schedule alternate dispute resolution,
to commence within 90 calendar days. The department shall serve both
parties with a notice of hearing, which sets out the time, date,
street address, room number, telephone number, and name of the
hearing officer. Service of the notice of hearing shall be by
certified mail.
(e) The alternate dispute resolution shall proceed as follows:
(1) The hearing shall be conducted by hearing officers in
accordance with standard procedures promulgated by the American
Arbitration Association or other acceptable alternative dispute
resolution entities.
(2) The hearing officers shall be familiar with the type of issues
presented by such claims, but need not be attorneys.
(3) The sole parties to the proceedings shall be the complainant
and the respondent.
(4) The disputes, claims, and interests of the department or the
State of California are not within the jurisdiction of the
proceedings.
(5) The validity of a regulation of the department or order
promulgated pursuant to this code is not within the jurisdiction of
the proceedings.
(6) Law and motion matters shall be handled by the assigned
hearing officer.
(7) The hearing officer has no authority to enter into settlement
discussions except upon stipulation of the parties involved.
(8) The parties may represent themselves in propria persona or may
be represented by a licensed attorney at law. A party may not be
represented by a representative who is not licensed to practice law.
(9) To the extent of any conflict between any provision of Chapter
4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title
2 of the Government Code and this article, this article shall
prevail.
(10) The hearing officer may order a review of records or an audit
of records by a certified public accountant. The review or audit
shall be conducted under generally accepted auditing standards of the
American Institute of Certified Public Accountants, and upon
completion of the review or audit the nature and extent of the review
or audit shall be disclosed to the parties by the auditor in the
audit report. The audit report shall disclose the number of
transactions reviewed and the rationale for selecting those
transactions. The department shall advance the costs of the audit or
review of records, but the hearing officer shall apportion the costs
at the conclusion of the hearing. The department shall pursue
repayment in accordance with the hearing officer's apportionment and
may bring an action in a court of competent jurisdiction to recover
funds advanced. Nothing in this subdivision shall be construed to
require the department to pursue any specific remedy or to prohibit
the department from accepting a reasonable repayment plan.
(f) The hearing officer shall render a written decision within 60
days of submission of the case for decision. In addition to rendering
a written finding as to what is owed by whom on the substantive
allegations of the complaint, the hearing officer shall decide
whether or not to order the full cost of the alternative dispute
resolution proceeding, and in what ratio or order the losing party is
to pay the costs of the proceeding. For these purposes, the cost of
the alternative dispute resolution proceeding does not include the
filing fee, the parties' attorney fees, or expert witness fees. The
hearing officer may also award a sanction against a complainant for
filing a frivolous complaint or against a respondent for unreasonable
delay tactics, bad faith bargaining, or resistance to the claim, of
either 10 percent of the amount of the award or a specific amount, up
to a maximum of one thousand dollars ($1,000). Any sanction award
shall not be deemed to be res judicata or collateral estoppel in any
subsequent case in which either the complainant or respondent is
charged with filing a frivolous complaint, unreasonable delay
tactics, bad faith bargaining, or resistance to the claim. The
department may consider the written decision of the hearing officer
in determining any related licensing action. The written decision of
the hearing officer may be introduced as evidence at a court
proceeding.
(g) Nothing in this section prohibits the parties to the dispute
from settling their dispute prior to, during, or after the hearing.
(h) Nothing in this section alters, precludes, or conditions the
exercise, during any stage of the proceedings provided by this
chapter, of any other rights to relief a party may have through
petition to a court of competent jurisdiction, including, but not
limited to, small claims court.
56382.8. (a) In addition to all other complaint procedures provided
for in this chapter, any aggrieved grower or licensee with a
complaint that is not subject to the federal Packers and Stockyards
Act, 1921 (7 U.S.C. Sec. 181 et seq.) or the federal Perishable
Agricultural Commodities Act, 1930 (7 U.S.C. Sec. 499a et seq.) and
for which the claim for damages does not exceed thirty thousand
dollars ($30,000), may file a verified complaint with the department,
subject to expedited review and settlement. Informal complaints may
be made for damages, but not for disciplinary action, although the
department may issue a complaint pursuant to Section 56382 as the
basis for disciplinary action. Informal complaints must be received
by the department within nine months of when the claimant ought to
have reasonably known of its existence, as required under Section
56446.
(b) Complaints must be submitted to the department in writing and
verified, and may be transmitted via United States mail, overnight
delivery, or by facsimile transmission, setting forth the essential
details of the transactions complained of, including the following:
(1) The name and address of each party to the dispute, of the
agent representing him or her in the transaction involved, if any, as
well as the party's counsel, if any.
(2) The quantity and quality or grade of each kind of produce
shipped if a grade or quality is the basis of payment.
(3) The date of shipment.
(4) The carrier identification if a carrier was used.
(5) The shipping and destination points.
(6) If a sale, the date, sales price, and amount actually
received.
(7) If a consignment, the date, reported proceeds, gross, and net.
(8) A precise estimate of the amount of damages claimed, if known.
(9) A brief statement of material facts in dispute, including
terms of applicable contracts.
(10) The amount of damages being sought.
(c) The complaint shall also, so far as practicable, be
accompanied by true copies of all available papers relating to the
transaction complained about, including shipping documents, letters,
telegrams, invoices, manifests, inspection certificates, accountings,
accounts of sale, and any special contracts or agreements.
(d) The informal complaint shall be accompanied by a nonrefundable
filing fee of one hundred dollars ($100) as required under Section
56382.5.
(e) Upon confirmation that a complaint has been properly and
timely filed, including the securing of a denial letter from the
United States Department of Agriculture under the federal Packers and
Stockyards Act, 1921, or the federal Perishable Agricultural
Commodities Act, 1930, the department shall send a copy of the
complaint to the respondent by certified mail and advise the
respondent that it shall have 30 days from the department's mailing
of the complaint in which to answer the complaint. The answer shall
contain a brief response to the complaint, including the respondent's
position with respect to the claimant's description of matters in
dispute, the relevant facts, and the remedy sought, together with a
description of any claims it may have against the complainant, in the
same manner as claims are to be set out in the complaint. The
respondent shall also include any pertinent documentation relevant to
its defense with its answer.
(f) After receipt of the answer from the respondent, the
department shall informally consult with the parties to clarify the
nature of the dispute and to facilitate the exchange of information
between the parties in order to assist the parties in reaching an
expedited informal resolution of the dispute. The informal
consultation process will last no longer than 60 days. The parties
shall cooperate fully with the department and shall participate in
the informal consultation process.
(g) If the informal consultation process provided for in this
section does not result in resolution of the dispute, the complainant
may then pursue arbitration against the licensee and the complaint
and any counterclaim will be fully and finally adjudicated and
resolved by a decision of an arbitrator under expedited arbitration
procedures as follows:
(1) The complainant shall submit a fee of six hundred dollars
($600) to the department made payable to the arbitrator, arbitration
service, or payee designated by the department for the arbitration
and any counterclaimant shall submit a fee of six hundred dollars
($600) to the department for any counterclaim that is filed also made
payable to the arbitrator, arbitration service, or payee designated
by the department.
(2) An arbitrator from a panel of arbitrators registered with the
department shall be selected by the department and confirmed by both
the complainant and the respondent or counterclaimant after the
prospective arbitrator has certified that he or she has no known
conflict of interest in the dispute and after each party has had an
opportunity to lodge an objection for cause to the appointment of the
named arbitrator within five days of its receipt of the notice of
appointment of the arbitrator. The notice of appointment shall be in
writing and may be transmitted via overnight delivery or by facsimile
transmission.
(3) Upon confirmation of the appointment of the arbitrator the
department will transmit to the arbitrator the verified complaint,
the statement of defense, and the statement of counterclaim, if one
is filed.
(4) The complainant shall have 30 days after receipt of the notice
of appointment of the arbitrator to submit to the department in
writing sworn declarations by witnesses and any other documentary
evidence not previously submitted, as well as legal authorities and
arguments.
(5) Within five days of the department's receipt of the
complainant's written submission the department shall transmit a copy
of the complainant's written submission to the respondent. The
respondent shall have 30 days from the receipt of the complainant's
written submission to submit to the department in writing responsive
declarations by witnesses or other documentary evidence not
previously submitted, as well as any legal authorities and arguments.
The respondent's written submission in support of its counterclaim,
if any, must be sent to the department at the same time as the
responsive submission.
(6) If there is a counterclaim filed, within five days of the
department's receipt of the counterclaimant's written submission the
department shall transmit a copy of the counterclaimant's written
submission to the complainant. The complainant shall have 10 days
from the receipt of the counterclaimant's written submission to
submit any witness statements, evidence, or legal authorities and
arguments in reply.
(7) Once all periods for submission of evidence and arguments have
expired and the department has transmitted all written submissions
to the arbitrator, the case and all evidence to be considered by the
arbitrator shall be deemed to be submitted.
(8) The arbitrator may, in the interest of justice, briefly extend
the time periods for written submissions by either party.
(9) The arbitrator shall issue his or her arbitration decision and
award in writing within 30 days after the case has been submitted
for a decision. This time period may be extended by the arbitrator
if, in his or her judgment, clarification of the evidence submitted
is required from either the complainant, the respondent or
counterclaimant, or both.
(10) No hearings or live testimony shall be conducted under the
expedited arbitration procedures.
(11) The arbitrator shall award interest at the legal rate to be
paid in addition to any damages that are awarded and the arbitrator
may award the recovery of costs to one party to the arbitration or
apportion costs between the parties as he or she deems appropriate.
Costs may include filing fees, mediation fees and expenses, fees or
expenses incurred by the department, and fees paid to expert
witnesses, auditors, or inspectors, but not attorney's fees, unless
there has been an agreement by the parties that the prevailing party
in any dispute shall be entitled to recover reasonable attorney's
fees as part of any award for damages, and in that case, the
arbitrator may award reasonable attorney's fees to the prevailing
party.
(h) Either party to an expedited arbitration proceeding conducted
pursuant to this section may bring an action in any California court
of competent jurisdiction to enforce any awards for damages made
pursuant to this section. If an enforcement action is necessary to
secure payment of awards for damages, the party initiating the
enforcement proceeding shall be entitled to recover all additional
expenses, costs, and attorney's fees incurred in connection with that
proceeding.
(i) The department shall retain jurisdiction, as provided for
under Section 56445, over any matter in which a licensee refuses to
pay or otherwise comply with an arbitrator's decision conducted
pursuant to the expedited arbitration procedures as set forth herein,
and may immediately commence an action to revoke the license of the
licensee.
(j) A complainant may enforce his or her rights through the
verified complaint and expedited arbitration process as provided
herein, or by a civil action brought in any court of competent
jurisdiction. This section shall in no way abridge, preclude, or
alter other remedies available to the parties now existing under
common law or by statute, and the provisions set forth herein are in
addition to those other remedies.
56383. The failure or refusal of any licensee to produce and make
available to the director any such books or records, or otherwise to
obstruct such examination or audit, is a good and sufficient ground
for the suspension or revocation of his license.
