14588. It is the intent of the Legislature that handling fees paid
to supermarket site recycling centers pursuant to Section 14585 shall
only be used to offset the unique costs of providing convenient
recycling opportunities to consumers at supermarket sites, and that
those fees may not be expended for the purpose of engaging in unfair
and predatory competition in order to reduce recycling rates of other
recycling centers certified pursuant to this division.
14588.1. (a) As used in this chapter, "unfair and predatory pricing"
means the payment to consumers by a supermarket site, that receives
handling fees for the redemption of beverage containers, in an amount
that exceeds the sum of both of the following:
(1) The California refund value for that container.
(2) (A) If the supermarket site is not located in a rural region,
the average scrap value paid per pound for that container type by
specified certified recycling centers located within a five-mile
radius of the supermarket site on the date of the alleged occurrence,
the day before the alleged occurrence, and the day after the alleged
occurrence.
(B) If the supermarket site is located in a rural region, the
average scrap value paid per pound for that container type by
specified certified recycling centers located within a 10-mile radius
of the supermarket site on the date of the alleged occurrence, the
day before the alleged occurrence, and the day after the alleged
occurrence.
(b) In calculating the three-day average price paid by recyclers
within the specified distance of a recycler alleged to have engaged
in predatory pricing, as required by subdivision (a), the department
shall only survey those recyclers who did not receive handling fees
in three or more of the 12 whole months immediately preceding the
date of the allegation of predatory pricing.
(c) For purposes of this chapter, "rural region" means a nonurban
area identified by the department on an annual basis using the loan
eligibility criteria of the Rural Housing Service of the United
States Department of Agriculture, Rural Development Administration,
or its successor agency. Those criteria include, but are not limited
to, places, open country, cities, towns, or census designated places
with populations that are less than 10,000 persons. The department
may designate an area with population of between 10,000 and 50,000
persons as a rural region, unless the area is identified as part of,
or associated with, an urban area, as determined by the department on
an individual basis.
14588.2. (a) To ensure that handling fees paid to a supermarket
site are not used for the purpose of engaging in unfair and predatory
pricing, and to otherwise further the intent of this chapter, the
department shall follow all of the requirements of this section upon
the complaint of either of the following:
(1) Any certified recycler located within five miles of the
supermarket site alleged to have engaged in unfair and predatory
pricing if not located in a rural region.
(2) Any certified recycler located within 10 miles of the
supermarket site alleged to have engaged in unfair and predatory
pricing if located in a rural region.
(b) (1) Within 50 days of receiving the complaint, the department
shall complete an audit of the payments for the redemption of
beverage containers being paid by the supermarket site, and by all
other certified recycling centers as specified in Section 14588.1,
for the purpose of determining whether the supermarket site is
engaged in unfair and predatory pricing.
(2) The department shall withhold from public disclosure any
proprietary information collected by the department in the course of
the audit mandated by paragraph (1). The department shall exercise
its discretion in determining what information is proprietary.
(c) (1) If the director determines there is probable cause that a
supermarket site, against which a complaint has been made, has
engaged in unfair and predatory pricing, the director shall, within
60 days of receiving the complaint, convene an informal hearing
before the director, or the director's designee.
(2) At least 10 days before the hearing, the director shall
forward the results of the audit to the complainant and respondent.
(3) At the hearing, the director, or the director's designee,
shall review the audit conducted pursuant to subdivision (b) and any
evidence presented by the complainant that a supermarket site has
engaged in unfair and predatory pricing. The director, or the
director's designee, shall also review any evidence presented by the
respondent that the respondent has not engaged in unfair and
predatory pricing.
(4) The respondent shall be given the opportunity to rebut the
presumption of unfair and predatory pricing imposed by Section
14588.1 by demonstrating to the satisfaction of the director, or the
director's designee, that the respondent did both of the following:
(A) The respondent made a good faith effort to determine the
average scrap value paid per pound for that container type by
certified recycling centers located within a five-mile or 10-mile
radius of the supermarket site, pursuant to subdivision (a) of
Section 14588.1, within 30 days before the date of the alleged
violation.
(B) The three-day average scrap value the respondent paid per
pound for that container type was within 2.5 percent of the three-day
average scrap value paid per pound determined by the department
pursuant to subdivision (a).
(5) The director, or the director's designee, may dismiss a
complaint made pursuant to subdivision (a) upon determining either of
the following:
(A) The complaint is without basis.
(B) The complaint is repetitious of prior similar complaints
against the same supermarket site for which the director or the
director's designee has determined that no unfair and predatory
pricing occurred.
(d) Within 20 days of the completion of the hearing, the director,
or the director's designee, shall determine whether the supermarket
site has engaged in unfair and predatory pricing. This determination
shall be based upon the audit conducted pursuant to subdivision (b),
and upon any clear and convincing evidence of unfair and predatory
pricing presented at the hearing.
(e) During the time period from the date of the receipt of a
complaint pursuant to subdivision (a), until the date the director
makes a determination pursuant to subdivision (d), the supermarket
site against which the allegation of unfair and predatory pricing is
made shall not receive handling fees that were earned during the
period commencing with the date of the alleged unfair and predatory
pricing. However, nothing in this subdivision shall affect the
payment of handling fees to a supermarket site that is found not to
have engaged in unfair and predatory pricing pursuant to this
section, or to the activities of a supermarket site prior to the date
of the alleged unfair and predatory pricing.
(f) If, after complying with the procedure established pursuant to
this section, the director, or the director's designee, determines
that a supermarket site has engaged in unfair and predatory pricing,
the site is ineligible to receive handling fees as specified by this
section.
(1) If the determination of unfair and predatory pricing is the
first for the site, the site is ineligible to receive handling fees
for six months from the date that the respondent is found to have
engaged in unfair and predatory pricing.
(2) If the determination of unfair and predatory pricing is the
second for the site, the site is ineligible to receive handling fees
for one year from the date that the respondent is found to have
engaged in unfair and predatory pricing.
(3) If the determination of unfair and predatory pricing is the
third or more for the site, the site is ineligible to receive
handling fees for five years after the date that the respondent is
found to have engaged in unfair and predatory pricing.
(g) The complainant or respondent may obtain a review of the
determination made pursuant to this section by filing in the superior
court a petition for a writ of mandate within 30 days following the
issuance of the determination. Section 1094.5 of the Code of Civil
Procedure shall govern judicial proceedings pursuant to this
subdivision, except that the court shall exercise its independent
judgment. If a petition for a writ of mandate is not filed within the
time limits set forth in this subdivision, the determination made
pursuant to this subdivision is not subject to review by any court or
agency.
(h) If either party appeals the determination of the director, or
the director's designee, pursuant to subdivision (g), and the
department prevails, the department may recover any costs associated
with its defense of the complaint.
14588. It is the intent of the Legislature that handling fees paid
to supermarket site recycling centers pursuant to Section 14585 shall
only be used to offset the unique costs of providing convenient
recycling opportunities to consumers at supermarket sites, and that
those fees may not be expended for the purpose of engaging in unfair
and predatory competition in order to reduce recycling rates of other
recycling centers certified pursuant to this division.
14588.1. (a) As used in this chapter, "unfair and predatory pricing"
means the payment to consumers by a supermarket site, that receives
handling fees for the redemption of beverage containers, in an amount
that exceeds the sum of both of the following:
(1) The California refund value for that container.
(2) (A) If the supermarket site is not located in a rural region,
the average scrap value paid per pound for that container type by
specified certified recycling centers located within a five-mile
radius of the supermarket site on the date of the alleged occurrence,
the day before the alleged occurrence, and the day after the alleged
occurrence.
(B) If the supermarket site is located in a rural region, the
average scrap value paid per pound for that container type by
specified certified recycling centers located within a 10-mile radius
of the supermarket site on the date of the alleged occurrence, the
day before the alleged occurrence, and the day after the alleged
occurrence.
(b) In calculating the three-day average price paid by recyclers
within the specified distance of a recycler alleged to have engaged
in predatory pricing, as required by subdivision (a), the department
shall only survey those recyclers who did not receive handling fees
in three or more of the 12 whole months immediately preceding the
date of the allegation of predatory pricing.
(c) For purposes of this chapter, "rural region" means a nonurban
area identified by the department on an annual basis using the loan
eligibility criteria of the Rural Housing Service of the United
States Department of Agriculture, Rural Development Administration,
or its successor agency. Those criteria include, but are not limited
to, places, open country, cities, towns, or census designated places
with populations that are less than 10,000 persons. The department
may designate an area with population of between 10,000 and 50,000
persons as a rural region, unless the area is identified as part of,
or associated with, an urban area, as determined by the department on
an individual basis.
14588.2. (a) To ensure that handling fees paid to a supermarket
site are not used for the purpose of engaging in unfair and predatory
pricing, and to otherwise further the intent of this chapter, the
department shall follow all of the requirements of this section upon
the complaint of either of the following:
(1) Any certified recycler located within five miles of the
supermarket site alleged to have engaged in unfair and predatory
pricing if not located in a rural region.
(2) Any certified recycler located within 10 miles of the
supermarket site alleged to have engaged in unfair and predatory
pricing if located in a rural region.
(b) (1) Within 50 days of receiving the complaint, the department
shall complete an audit of the payments for the redemption of
beverage containers being paid by the supermarket site, and by all
other certified recycling centers as specified in Section 14588.1,
for the purpose of determining whether the supermarket site is
engaged in unfair and predatory pricing.
(2) The department shall withhold from public disclosure any
proprietary information collected by the department in the course of
the audit mandated by paragraph (1). The department shall exercise
its discretion in determining what information is proprietary.
(c) (1) If the director determines there is probable cause that a
supermarket site, against which a complaint has been made, has
engaged in unfair and predatory pricing, the director shall, within
60 days of receiving the complaint, convene an informal hearing
before the director, or the director's designee.
(2) At least 10 days before the hearing, the director shall
forward the results of the audit to the complainant and respondent.
(3) At the hearing, the director, or the director's designee,
shall review the audit conducted pursuant to subdivision (b) and any
evidence presented by the complainant that a supermarket site has
engaged in unfair and predatory pricing. The director, or the
director's designee, shall also review any evidence presented by the
respondent that the respondent has not engaged in unfair and
predatory pricing.
(4) The respondent shall be given the opportunity to rebut the
presumption of unfair and predatory pricing imposed by Section
14588.1 by demonstrating to the satisfaction of the director, or the
director's designee, that the respondent did both of the following:
(A) The respondent made a good faith effort to determine the
average scrap value paid per pound for that container type by
certified recycling centers located within a five-mile or 10-mile
radius of the supermarket site, pursuant to subdivision (a) of
Section 14588.1, within 30 days before the date of the alleged
violation.
(B) The three-day average scrap value the respondent paid per
pound for that container type was within 2.5 percent of the three-day
average scrap value paid per pound determined by the department
pursuant to subdivision (a).
(5) The director, or the director's designee, may dismiss a
complaint made pursuant to subdivision (a) upon determining either of
the following:
(A) The complaint is without basis.
(B) The complaint is repetitious of prior similar complaints
against the same supermarket site for which the director or the
director's designee has determined that no unfair and predatory
pricing occurred.
(d) Within 20 days of the completion of the hearing, the director,
or the director's designee, shall determine whether the supermarket
site has engaged in unfair and predatory pricing. This determination
shall be based upon the audit conducted pursuant to subdivision (b),
and upon any clear and convincing evidence of unfair and predatory
pricing presented at the hearing.
(e) During the time period from the date of the receipt of a
complaint pursuant to subdivision (a), until the date the director
makes a determination pursuant to subdivision (d), the supermarket
site against which the allegation of unfair and predatory pricing is
made shall not receive handling fees that were earned during the
period commencing with the date of the alleged unfair and predatory
pricing. However, nothing in this subdivision shall affect the
payment of handling fees to a supermarket site that is found not to
have engaged in unfair and predatory pricing pursuant to this
section, or to the activities of a supermarket site prior to the date
of the alleged unfair and predatory pricing.
(f) If, after complying with the procedure established pursuant to
this section, the director, or the director's designee, determines
that a supermarket site has engaged in unfair and predatory pricing,
the site is ineligible to receive handling fees as specified by this
section.
(1) If the determination of unfair and predatory pricing is the
first for the site, the site is ineligible to receive handling fees
for six months from the date that the respondent is found to have
engaged in unfair and predatory pricing.
(2) If the determination of unfair and predatory pricing is the
second for the site, the site is ineligible to receive handling fees
for one year from the date that the respondent is found to have
engaged in unfair and predatory pricing.
(3) If the determination of unfair and predatory pricing is the
third or more for the site, the site is ineligible to receive
handling fees for five years after the date that the respondent is
found to have engaged in unfair and predatory pricing.
(g) The complainant or respondent may obtain a review of the
determination made pursuant to this section by filing in the superior
court a petition for a writ of mandate within 30 days following the
issuance of the determination. Section 1094.5 of the Code of Civil
Procedure shall govern judicial proceedings pursuant to this
subdivision, except that the court shall exercise its independent
judgment. If a petition for a writ of mandate is not filed within the
time limits set forth in this subdivision, the determination made
pursuant to this subdivision is not subject to review by any court or
agency.
(h) If either party appeals the determination of the director, or
the director's designee, pursuant to subdivision (g), and the
department prevails, the department may recover any costs associated
with its defense of the complaint.
14588. It is the intent of the Legislature that handling fees paid
to supermarket site recycling centers pursuant to Section 14585 shall
only be used to offset the unique costs of providing convenient
recycling opportunities to consumers at supermarket sites, and that
those fees may not be expended for the purpose of engaging in unfair
and predatory competition in order to reduce recycling rates of other
recycling centers certified pursuant to this division.
14588.1. (a) As used in this chapter, "unfair and predatory pricing"
means the payment to consumers by a supermarket site, that receives
handling fees for the redemption of beverage containers, in an amount
that exceeds the sum of both of the following:
(1) The California refund value for that container.
(2) (A) If the supermarket site is not located in a rural region,
the average scrap value paid per pound for that container type by
specified certified recycling centers located within a five-mile
radius of the supermarket site on the date of the alleged occurrence,
the day before the alleged occurrence, and the day after the alleged
occurrence.
(B) If the supermarket site is located in a rural region, the
average scrap value paid per pound for that container type by
specified certified recycling centers located within a 10-mile radius
of the supermarket site on the date of the alleged occurrence, the
day before the alleged occurrence, and the day after the alleged
occurrence.
(b) In calculating the three-day average price paid by recyclers
within the specified distance of a recycler alleged to have engaged
in predatory pricing, as required by subdivision (a), the department
shall only survey those recyclers who did not receive handling fees
in three or more of the 12 whole months immediately preceding the
date of the allegation of predatory pricing.
(c) For purposes of this chapter, "rural region" means a nonurban
area identified by the department on an annual basis using the loan
eligibility criteria of the Rural Housing Service of the United
States Department of Agriculture, Rural Development Administration,
or its successor agency. Those criteria include, but are not limited
to, places, open country, cities, towns, or census designated places
with populations that are less than 10,000 persons. The department
may designate an area with population of between 10,000 and 50,000
persons as a rural region, unless the area is identified as part of,
or associated with, an urban area, as determined by the department on
an individual basis.
14588.2. (a) To ensure that handling fees paid to a supermarket
site are not used for the purpose of engaging in unfair and predatory
pricing, and to otherwise further the intent of this chapter, the
department shall follow all of the requirements of this section upon
the complaint of either of the following:
(1) Any certified recycler located within five miles of the
supermarket site alleged to have engaged in unfair and predatory
pricing if not located in a rural region.
(2) Any certified recycler located within 10 miles of the
supermarket site alleged to have engaged in unfair and predatory
pricing if located in a rural region.
(b) (1) Within 50 days of receiving the complaint, the department
shall complete an audit of the payments for the redemption of
beverage containers being paid by the supermarket site, and by all
other certified recycling centers as specified in Section 14588.1,
for the purpose of determining whether the supermarket site is
engaged in unfair and predatory pricing.
(2) The department shall withhold from public disclosure any
proprietary information collected by the department in the course of
the audit mandated by paragraph (1). The department shall exercise
its discretion in determining what information is proprietary.
(c) (1) If the director determines there is probable cause that a
supermarket site, against which a complaint has been made, has
engaged in unfair and predatory pricing, the director shall, within
60 days of receiving the complaint, convene an informal hearing
before the director, or the director's designee.
(2) At least 10 days before the hearing, the director shall
forward the results of the audit to the complainant and respondent.
(3) At the hearing, the director, or the director's designee,
shall review the audit conducted pursuant to subdivision (b) and any
evidence presented by the complainant that a supermarket site has
engaged in unfair and predatory pricing. The director, or the
director's designee, shall also review any evidence presented by the
respondent that the respondent has not engaged in unfair and
predatory pricing.
(4) The respondent shall be given the opportunity to rebut the
presumption of unfair and predatory pricing imposed by Section
14588.1 by demonstrating to the satisfaction of the director, or the
director's designee, that the respondent did both of the following:
(A) The respondent made a good faith effort to determine the
average scrap value paid per pound for that container type by
certified recycling centers located within a five-mile or 10-mile
radius of the supermarket site, pursuant to subdivision (a) of
Section 14588.1, within 30 days before the date of the alleged
violation.
(B) The three-day average scrap value the respondent paid per
pound for that container type was within 2.5 percent of the three-day
average scrap value paid per pound determined by the department
pursuant to subdivision (a).
(5) The director, or the director's designee, may dismiss a
complaint made pursuant to subdivision (a) upon determining either of
the following:
(A) The complaint is without basis.
(B) The complaint is repetitious of prior similar complaints
against the same supermarket site for which the director or the
director's designee has determined that no unfair and predatory
pricing occurred.
(d) Within 20 days of the completion of the hearing, the director,
or the director's designee, shall determine whether the supermarket
site has engaged in unfair and predatory pricing. This determination
shall be based upon the audit conducted pursuant to subdivision (b),
and upon any clear and convincing evidence of unfair and predatory
pricing presented at the hearing.
(e) During the time period from the date of the receipt of a
complaint pursuant to subdivision (a), until the date the director
makes a determination pursuant to subdivision (d), the supermarket
site against which the allegation of unfair and predatory pricing is
made shall not receive handling fees that were earned during the
period commencing with the date of the alleged unfair and predatory
pricing. However, nothing in this subdivision shall affect the
payment of handling fees to a supermarket site that is found not to
have engaged in unfair and predatory pricing pursuant to this
section, or to the activities of a supermarket site prior to the date
of the alleged unfair and predatory pricing.
(f) If, after complying with the procedure established pursuant to
this section, the director, or the director's designee, determines
that a supermarket site has engaged in unfair and predatory pricing,
the site is ineligible to receive handling fees as specified by this
section.
(1) If the determination of unfair and predatory pricing is the
first for the site, the site is ineligible to receive handling fees
for six months from the date that the respondent is found to have
engaged in unfair and predatory pricing.
(2) If the determination of unfair and predatory pricing is the
second for the site, the site is ineligible to receive handling fees
for one year from the date that the respondent is found to have
engaged in unfair and predatory pricing.
(3) If the determination of unfair and predatory pricing is the
third or more for the site, the site is ineligible to receive
handling fees for five years after the date that the respondent is
found to have engaged in unfair and predatory pricing.
(g) The complainant or respondent may obtain a review of the
determination made pursuant to this section by filing in the superior
court a petition for a writ of mandate within 30 days following the
issuance of the determination. Section 1094.5 of the Code of Civil
Procedure shall govern judicial proceedings pursuant to this
subdivision, except that the court shall exercise its independent
judgment. If a petition for a writ of mandate is not filed within the
time limits set forth in this subdivision, the determination made
pursuant to this subdivision is not subject to review by any court or
agency.
(h) If either party appeals the determination of the director, or
the director's designee, pursuant to subdivision (g), and the
department prevails, the department may recover any costs associated
with its defense of the complaint.
