14590. If any provision of this division or the application thereof
to any person or circumstances is held invalid, that invalidity
shall not affect other provisions or applications of the division
which can be given effect without the invalid provision or
application, and to this end the provisions of this division are
severable.
14591. (a) Except as provided in subdivision (b), in addition to
any other applicable civil or criminal penalties, any person
convicted of a violation of this division is guilty of an infraction,
which is punishable by a fine of one hundred dollars ($100) for each
initial separate violation and not more than one thousand dollars
($1,000) for each subsequent separate violation per day.
(b) (1) Every person who, with intent to defraud, takes any of the
following actions is guilty of fraud:
(A) Submits a false or fraudulent claim for payment pursuant to
Section 14573 or 14573.5.
(B) Fails to accurately report the number of beverage containers
sold, as required by subdivision (b) of Section 14550.
(C) Fails to make payments as required by Section 14574.
(D) Redeems out-of-state containers, rejected containers, line
breakage, or containers that have already been redeemed.
(E) Returns redeemed containers to the marketplace for redemption.
(F) Brings out-of-state containers, rejected containers, or line
breakage to the marketplace for redemption.
(G) Submits a false or fraudulent claim for handling fee payments
pursuant to Section 14585.
(2) If the money obtained or withheld pursuant to paragraph (1)
exceeds nine hundred fifty dollars ($950), the fraud is punishable by
imprisonment in the county jail for not more than one year or by a
fine not exceeding ten thousand dollars ($10,000), or by both, or by
imprisonment in the state prison for 16 months, two years, or three
years, or by a fine not exceeding twenty-five thousand dollars
($25,000) or twice the late or unmade payments plus interest,
whichever is greater, or by both fine and imprisonment. If the money
obtained or withheld pursuant to paragraph (1) equals, or is less
than, nine hundred fifty dollars ($950), the fraud is punishable by
imprisonment in the county jail for not more than six months or by a
fine not exceeding one thousand dollars ($1,000), or by both.
(c) For purposes of this section and Chapter 8.5 (commencing with
Section 14595), "line breakage" and "rejected container" have the
same meanings as defined in the regulations adopted or amended by the
department pursuant to this division.
14591.1. (a) (1) The department may assess a civil penalty upon a
person who violates this division in an amount greater than one
thousand dollars ($1,000) pursuant to this division and any
regulations adopted pursuant to this division only after notice and
hearing in accordance with Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code.
(2) The department may assess a civil penalty upon a person who
violates this division in an amount equal to, or less than, one
thousand dollars ($1,000), using a notice of violation process
established by regulation and may use an informal hearing process
pursuant to Article 10 (commencing with Section 11445.10) of Chapter
4.5 of Part 1 of Division 3 of Title 2 of the Government Code.
(3) Each violation of this division is a separate violation and
each day of the violation is a separate violation. The department
shall deposit all revenues from civil penalties in the Penalty
Account specified in subdivision (d) of Section 14580.
(b) Any person who intentionally or negligently violates this
division may be assessed a civil penalty by the department pursuant
to subdivision (a) of up to five thousand dollars ($5,000) for each
separate violation, or for continuing violations, for each day that
violation occurs.
(c) Any person who violates this division by an action not subject
to subdivision (b) may be assessed a civil penalty by the department
pursuant to subdivision (a) of up to one thousand dollars ($1,000)
for each separate violation, or for continuing violations, for each
day that violation occurs.
(d) No person may be liable for a civil penalty imposed under
subdivision (b) and for a civil penalty imposed under subdivision (c)
for the same act or failure to act.
(e) In determining the amount of penalties to be imposed pursuant
to this division, the department shall take into consideration the
nature, circumstances, extent and gravity of the violation, the costs
associated with bringing the action and, with respect to the
violator, the ability to pay, the degree of culpability, compliance
history, and any other matters that justice may require.
14591.2. (a) The department may take disciplinary action against
any party responsible for directing, contributing to, participating
in, or otherwise influencing the operations of, a certified or
registered facility or program. A responsible party includes, but is
not limited to, the certificate holder, registrant, officer,
director, or managing employee. Except as otherwise provided in this
division, the department shall provide a notice and hearing in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code before taking any
disciplinary action against a certificate holder.
(b) All of the following are grounds for disciplinary action, in
the form determined by the department in accordance with subdivision
(c):
(1) The responsible party engaged in fraud or deceit to obtain a
certificate or registration.
(2) The responsible party engaged in dishonesty, incompetence,
negligence, or fraud in performing the functions and duties of a
certificate holder or registrant.
(3) The responsible party violated this division or any regulation
adopted pursuant to this division, including, but not limited to,
any requirements concerning auditing, reporting, standards of
operation, or being open for business.
(4) The responsible party is convicted of any crime of moral
turpitude or fraud, any crime involving dishonesty, or any crime
substantially related to the qualifications, functions, or duties of
a certificate holder.
(c) The department may take disciplinary action pursuant to this
section, by taking any one of, or any combination of, the following:
(1) Immediate revocation of the certificate or registration, or
revocation of a certificate or registration as of a specific date in
the future.
(2) Immediate suspension of the certificate or registration for a
specified period of time, or suspension of the certificate or
registration as of a specific date in the future. Notwithstanding
subdivision (a), the department may impose a suspension of five days
or less through an informal notice, if the action is subject to a
stay on appeal, pending an informal hearing convened in accordance
with Article 10 (commencing with Section 11445.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code.
(3) Imposition on the certificate or registration of any condition
that the department determines would further the goals of this
division.
(4) Issuance of a probationary certificate or registration with
conditions determined by the department.
(5) Collection of amounts in restitution of any money improperly
paid to the certificate holder or registrant from the fund.
(6) Imposition of civil penalties pursuant to Section 14591.1.
(d) The department may do any of the following in taking
disciplinary action pursuant to this section:
(1) If a certificate holder or registrant holds certificates or is
registered to operate at more than one site or to operate in more
than one capacity at one location, such as an entity certified as
both a processor and a recycling center, the department may
simultaneously revoke, suspend, or impose conditions upon some, or
all of, the certificates held by the responsible party.
(2) If the responsible party is an officer, director, partner,
manager, employee, or the owner of a controlling ownership interest
of another certificate holder or registrant, that other operator's
certificate or registration may also be revoked, suspended, or
conditioned by the department in the same proceeding, if the other
certificate holder or registrant is given notice of that proceeding,
or in a subsequent proceeding.
(3) (A) If, pursuant to notice and a hearing conducted by the
director or the director's designee in accordance with Article 10
(commencing with Section 11445.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code, the department
determines that the continued operation of a certified or registered
entity poses an immediate and significant threat to the fund, the
department may order the immediate suspension of the certificate
holder or registrant, pending revocation of the certificate or
registration, or the issuance of a probationary certificate imposing
reasonable terms and conditions. The department shall record the
testimony at the hearing and, upon request, prepare a transcript. For
purposes of this section, an immediate and significant threat to the
fund means any of the following:
(i) A loss to the fund of at least ten thousand dollars ($10,000)
during the six-month period immediately preceding the order of
suspension.
(ii) Missing or fraudulent records associated with a claim or
claims totaling at least ten thousand dollars ($10,000) during the
six-month period immediately preceding the order of suspension.
(iii) A pattern of deceit, fraud, or intentional misconduct in
carrying out the duties and responsibilities of a certificate holder
during the six-month period immediately preceding the order of
suspension. For purposes of this section, a pattern of deceit, fraud,
or intentional misconduct in carrying out the duties of a
certificate holder includes, but is not limited to, the destruction
or concealment of any records six months immediately preceding the
order of suspension.
(iv) At least three claims submitted for ineligible material in
violation of this division, including, but not limited to, a
violation of Section 14595.5, during the six-month period immediately
preceding the order of suspension.
(B) An order of suspension or probation may be issued to any or
all certified or registered facilities or programs operated by a
person or entity that the department determines to be culpable or
responsible for the loss or conduct identified pursuant to
subparagraph (A).
(C) The order of suspension or issuance of a probationary
certificate imposing terms or conditions shall become effective upon
written notice of the order to the certificate holder or registrant.
Within 20 days after notice of the order of suspension, the
department shall file an accusation seeking revocation of any or all
certificates or registrations held by the certificate holder or
registrant. The certificate holder or registrant may, upon receiving
the notice of the order of suspension or probation, appeal the order
by requesting a hearing in accordance with Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. A request for a hearing or appeal from an order of the
department does not stay the action of the department for which the
notice of the order is given. The department may combine hearings to
appeal an order of suspension and a hearing for the proposed
revocation of a certificate or registration into one proceeding.
(D) Nothing in this section shall prohibit the department from
immediately revoking a probationary certificate pursuant to
subdivision (b) of Section 14541 or from taking other disciplinary
action pursuant to Section 14591.2.
14591.3. In any civil or administrative action brought pursuant to
this division in which the department prevails, the department may
assess against the defendant or respondent any costs and fees,
including attorneys' and experts' fees, and the cost of the
investigation and hearing, which are incurred by the fund, whether
paid or payable from the fund, and are a result of bringing the civil
or administrative action against the defendant or respondent. In the
same action, the defendant or respondent may claim from the
department any costs and fees incurred in defending or responding to
any action brought by the department in which the defendant or
respondent prevails, upon a finding that the department's action was
clearly frivolous or lacking in significant merit.
14591.4. (a) In addition to any other remedies, penalties, and
disciplinary actions provided by this division or otherwise, the
department may seek restitution of any money illegally paid to any
person from the fund, plus interest at the rate earned on the Pooled
Money Investment Account of the total amount.
(b) A certificate holder is liable to the department for
restitution pursuant to paragraph (5) of subdivision (c) of Section
14591.2 for payments made by the department to the certificate holder
that are based on improperly prepared or maintained documents, as
specified in paragraph (7) of subdivision (b) of Section 14538 and
paragraph (8) of subdivision (b) of Section 14539.
(c) If the department has a civil cause of action for restitution
pursuant to subdivision (a) or (b), or if the department has a civil
cause of action against a certificate holder or other responsible
party for restitution under any other circumstance, the department
may seek restitution in accordance with the following:
(1) For restitution of an amount of more than one thousand dollars
($1,000), the department shall proceed in a hearing in accordance
with Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code. The hearing may take place at
the same time as a hearing to impose disciplinary action on a
certificate holder.
(2) For restitution of an amount of one thousand dollars ($1,000)
or less, the department may use an informal hearing in accordance
with Article 10 (commencing with Section 11445.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code.
(d) Notwithstanding subdivisions (b) and (c) of Section 14591.1,
if the department collects amounts in full restitution for money
paid, the department may impose a penalty of not more than one
hundred dollars ($100) for each separate violation, or for continuing
violations, for each day that violation occurs.
14591.5. After the time for judicial review under Section 11523 of
the Government Code has expired, the department may apply to the
small claims court or superior court, depending on the jurisdictional
amount and any other remedy sought, in the county where the
penalties, restitution, or other remedy was imposed by the
department, for a judgment to collect any unpaid civil penalties or
restitution or to enforce any other remedy provided by this division.
The application, which shall include a certified copy of the final
agency order or decision, shall constitute a sufficient showing to
warrant the issuance of the judgment. The court clerk shall enter the
judgment immediately in conformity with the application. The
judgment so entered shall have the same force and effect as, and
shall be subject to all the provisions of law relating to, a judgment
in a civil action, and may be enforced in the same manner as any
other judgment of the court. The court shall make enforcement of the
judgment a priority.
14591.6. (a) When a person is engaged in recycling activity that
violates this division, any regulation adopted pursuant to this
division, or an order issued under this division, the department may
issue an order to that person to cease and desist from that activity.
(b) If a request for a hearing is filed in writing within 10 days
of the date of service of the order described in subdivision (a), a
hearing shall be held in accordance with Article 10 (commencing with
Section 11445.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2
of the Government Code. The director or the director's designee shall
determine whether to sustain or reverse the cease and desist order.
If sustained, the order shall become effective and final upon the
issuance and service of the order.
(c) If no written request for a hearing is filed within 10 days of
the date of service of the order described in subdivision (a), or if
a party requesting the hearing does not appear at the hearing, the
order shall be deemed the final order of the department and is not
subject to review by any court or agency. This order shall become
effective and final after the expiration of the 10-day period within
which a hearing may be requested.
(d) If a hearing is requested pursuant to subdivision (b) and the
party requesting the hearing does not appear on the date scheduled,
and fails to notify the department at least five days prior to the
hearing date that the party will not appear, the department may
recover from the party all costs and fees incurred by the department,
including attorneys' and experts' fees, and any other costs
associated with preparing for, or conducting, the hearing.
(e) Upon the failure of any person or persons to comply with any
cease and desist order issued by the department, the Attorney
General, upon request of the department, shall petition the superior
court for the issuance of a preliminary or permanent injunction, or
both, as may be appropriate, restraining the person from continuing
the activity in violation of the cease and desist order.
(f) The court shall issue an order directing defendants to appear
before the court at a certain time and place and show cause why the
injunction should not be issued. The court may grant the prohibitory
or mandatory relief that may be warranted.
14593. Notwithstanding subdivisions (b) and (c) of Section 14591.1,
the department may assess a civil penalty of up to 15 percent of the
amount due for payment, and interest at the rate earned by the
Pooled Money Investment Account, on distributors and beverage
manufacturers for underpayment or late payment of the redemption
payments for containers to the fund. The department may examine the
accounts and records of distributors and beverage manufacturers that
pay or should pay a redemption payment. No penalty shall be assessed
until 30 days after the department has notified the distributor or
manufacturer of the penalty assessment, and the amount due for
payment and interest has not been paid.
14594. (a) Notwithstanding subdivisions (b) and (c) of Section
14591.1, the department may assess a civil penalty of up to 15
percent of the amount due for payment, and interest at the rate
earned by the Pooled Money Investment Account, on a beverage
manufacturer that fails to pay a processing fee required pursuant to
Section 14575. The department may examine the accounts and records of
a beverage manufacturer that pays or should pay a processing fee. No
penalty shall be assessed until 30 days after the department has
notified the manufacturer of the penalty assessment, and the amount
due for payment and interest has not been paid.
(b) If the department determines that an audit of a beverage
manufacturer shows that there has been an underpayment of a
processing fee, the department may examine the records concerning
beverage container sales of a container manufacturer that supplied
the beverage containers to the beverage manufacturer.
14594.5. The department may assess upon any person, entity, or
operation which redeems, attempts to redeem, or aids in the
redemption of, empty beverage containers that have already been
redeemed, a civil penalty of up to ten thousand dollars ($10,000) per
transaction, or an amount equal to three times the damage or
potential damage, whichever is greater, plus costs as provided in
Section 14591.3, pursuant to notice and hearing in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code.
14590. If any provision of this division or the application thereof
to any person or circumstances is held invalid, that invalidity
shall not affect other provisions or applications of the division
which can be given effect without the invalid provision or
application, and to this end the provisions of this division are
severable.
14591. (a) Except as provided in subdivision (b), in addition to
any other applicable civil or criminal penalties, any person
convicted of a violation of this division is guilty of an infraction,
which is punishable by a fine of one hundred dollars ($100) for each
initial separate violation and not more than one thousand dollars
($1,000) for each subsequent separate violation per day.
(b) (1) Every person who, with intent to defraud, takes any of the
following actions is guilty of fraud:
(A) Submits a false or fraudulent claim for payment pursuant to
Section 14573 or 14573.5.
(B) Fails to accurately report the number of beverage containers
sold, as required by subdivision (b) of Section 14550.
(C) Fails to make payments as required by Section 14574.
(D) Redeems out-of-state containers, rejected containers, line
breakage, or containers that have already been redeemed.
(E) Returns redeemed containers to the marketplace for redemption.
(F) Brings out-of-state containers, rejected containers, or line
breakage to the marketplace for redemption.
(G) Submits a false or fraudulent claim for handling fee payments
pursuant to Section 14585.
(2) If the money obtained or withheld pursuant to paragraph (1)
exceeds nine hundred fifty dollars ($950), the fraud is punishable by
imprisonment in the county jail for not more than one year or by a
fine not exceeding ten thousand dollars ($10,000), or by both, or by
imprisonment in the state prison for 16 months, two years, or three
years, or by a fine not exceeding twenty-five thousand dollars
($25,000) or twice the late or unmade payments plus interest,
whichever is greater, or by both fine and imprisonment. If the money
obtained or withheld pursuant to paragraph (1) equals, or is less
than, nine hundred fifty dollars ($950), the fraud is punishable by
imprisonment in the county jail for not more than six months or by a
fine not exceeding one thousand dollars ($1,000), or by both.
(c) For purposes of this section and Chapter 8.5 (commencing with
Section 14595), "line breakage" and "rejected container" have the
same meanings as defined in the regulations adopted or amended by the
department pursuant to this division.
14591.1. (a) (1) The department may assess a civil penalty upon a
person who violates this division in an amount greater than one
thousand dollars ($1,000) pursuant to this division and any
regulations adopted pursuant to this division only after notice and
hearing in accordance with Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code.
(2) The department may assess a civil penalty upon a person who
violates this division in an amount equal to, or less than, one
thousand dollars ($1,000), using a notice of violation process
established by regulation and may use an informal hearing process
pursuant to Article 10 (commencing with Section 11445.10) of Chapter
4.5 of Part 1 of Division 3 of Title 2 of the Government Code.
(3) Each violation of this division is a separate violation and
each day of the violation is a separate violation. The department
shall deposit all revenues from civil penalties in the Penalty
Account specified in subdivision (d) of Section 14580.
(b) Any person who intentionally or negligently violates this
division may be assessed a civil penalty by the department pursuant
to subdivision (a) of up to five thousand dollars ($5,000) for each
separate violation, or for continuing violations, for each day that
violation occurs.
(c) Any person who violates this division by an action not subject
to subdivision (b) may be assessed a civil penalty by the department
pursuant to subdivision (a) of up to one thousand dollars ($1,000)
for each separate violation, or for continuing violations, for each
day that violation occurs.
(d) No person may be liable for a civil penalty imposed under
subdivision (b) and for a civil penalty imposed under subdivision (c)
for the same act or failure to act.
(e) In determining the amount of penalties to be imposed pursuant
to this division, the department shall take into consideration the
nature, circumstances, extent and gravity of the violation, the costs
associated with bringing the action and, with respect to the
violator, the ability to pay, the degree of culpability, compliance
history, and any other matters that justice may require.
14591.2. (a) The department may take disciplinary action against
any party responsible for directing, contributing to, participating
in, or otherwise influencing the operations of, a certified or
registered facility or program. A responsible party includes, but is
not limited to, the certificate holder, registrant, officer,
director, or managing employee. Except as otherwise provided in this
division, the department shall provide a notice and hearing in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code before taking any
disciplinary action against a certificate holder.
(b) All of the following are grounds for disciplinary action, in
the form determined by the department in accordance with subdivision
(c):
(1) The responsible party engaged in fraud or deceit to obtain a
certificate or registration.
(2) The responsible party engaged in dishonesty, incompetence,
negligence, or fraud in performing the functions and duties of a
certificate holder or registrant.
(3) The responsible party violated this division or any regulation
adopted pursuant to this division, including, but not limited to,
any requirements concerning auditing, reporting, standards of
operation, or being open for business.
(4) The responsible party is convicted of any crime of moral
turpitude or fraud, any crime involving dishonesty, or any crime
substantially related to the qualifications, functions, or duties of
a certificate holder.
(c) The department may take disciplinary action pursuant to this
section, by taking any one of, or any combination of, the following:
(1) Immediate revocation of the certificate or registration, or
revocation of a certificate or registration as of a specific date in
the future.
(2) Immediate suspension of the certificate or registration for a
specified period of time, or suspension of the certificate or
registration as of a specific date in the future. Notwithstanding
subdivision (a), the department may impose a suspension of five days
or less through an informal notice, if the action is subject to a
stay on appeal, pending an informal hearing convened in accordance
with Article 10 (commencing with Section 11445.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code.
(3) Imposition on the certificate or registration of any condition
that the department determines would further the goals of this
division.
(4) Issuance of a probationary certificate or registration with
conditions determined by the department.
(5) Collection of amounts in restitution of any money improperly
paid to the certificate holder or registrant from the fund.
(6) Imposition of civil penalties pursuant to Section 14591.1.
(d) The department may do any of the following in taking
disciplinary action pursuant to this section:
(1) If a certificate holder or registrant holds certificates or is
registered to operate at more than one site or to operate in more
than one capacity at one location, such as an entity certified as
both a processor and a recycling center, the department may
simultaneously revoke, suspend, or impose conditions upon some, or
all of, the certificates held by the responsible party.
(2) If the responsible party is an officer, director, partner,
manager, employee, or the owner of a controlling ownership interest
of another certificate holder or registrant, that other operator's
certificate or registration may also be revoked, suspended, or
conditioned by the department in the same proceeding, if the other
certificate holder or registrant is given notice of that proceeding,
or in a subsequent proceeding.
(3) (A) If, pursuant to notice and a hearing conducted by the
director or the director's designee in accordance with Article 10
(commencing with Section 11445.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code, the department
determines that the continued operation of a certified or registered
entity poses an immediate and significant threat to the fund, the
department may order the immediate suspension of the certificate
holder or registrant, pending revocation of the certificate or
registration, or the issuance of a probationary certificate imposing
reasonable terms and conditions. The department shall record the
testimony at the hearing and, upon request, prepare a transcript. For
purposes of this section, an immediate and significant threat to the
fund means any of the following:
(i) A loss to the fund of at least ten thousand dollars ($10,000)
during the six-month period immediately preceding the order of
suspension.
(ii) Missing or fraudulent records associated with a claim or
claims totaling at least ten thousand dollars ($10,000) during the
six-month period immediately preceding the order of suspension.
(iii) A pattern of deceit, fraud, or intentional misconduct in
carrying out the duties and responsibilities of a certificate holder
during the six-month period immediately preceding the order of
suspension. For purposes of this section, a pattern of deceit, fraud,
or intentional misconduct in carrying out the duties of a
certificate holder includes, but is not limited to, the destruction
or concealment of any records six months immediately preceding the
order of suspension.
(iv) At least three claims submitted for ineligible material in
violation of this division, including, but not limited to, a
violation of Section 14595.5, during the six-month period immediately
preceding the order of suspension.
(B) An order of suspension or probation may be issued to any or
all certified or registered facilities or programs operated by a
person or entity that the department determines to be culpable or
responsible for the loss or conduct identified pursuant to
subparagraph (A).
(C) The order of suspension or issuance of a probationary
certificate imposing terms or conditions shall become effective upon
written notice of the order to the certificate holder or registrant.
Within 20 days after notice of the order of suspension, the
department shall file an accusation seeking revocation of any or all
certificates or registrations held by the certificate holder or
registrant. The certificate holder or registrant may, upon receiving
the notice of the order of suspension or probation, appeal the order
by requesting a hearing in accordance with Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. A request for a hearing or appeal from an order of the
department does not stay the action of the department for which the
notice of the order is given. The department may combine hearings to
appeal an order of suspension and a hearing for the proposed
revocation of a certificate or registration into one proceeding.
(D) Nothing in this section shall prohibit the department from
immediately revoking a probationary certificate pursuant to
subdivision (b) of Section 14541 or from taking other disciplinary
action pursuant to Section 14591.2.
14591.3. In any civil or administrative action brought pursuant to
this division in which the department prevails, the department may
assess against the defendant or respondent any costs and fees,
including attorneys' and experts' fees, and the cost of the
investigation and hearing, which are incurred by the fund, whether
paid or payable from the fund, and are a result of bringing the civil
or administrative action against the defendant or respondent. In the
same action, the defendant or respondent may claim from the
department any costs and fees incurred in defending or responding to
any action brought by the department in which the defendant or
respondent prevails, upon a finding that the department's action was
clearly frivolous or lacking in significant merit.
14591.4. (a) In addition to any other remedies, penalties, and
disciplinary actions provided by this division or otherwise, the
department may seek restitution of any money illegally paid to any
person from the fund, plus interest at the rate earned on the Pooled
Money Investment Account of the total amount.
(b) A certificate holder is liable to the department for
restitution pursuant to paragraph (5) of subdivision (c) of Section
14591.2 for payments made by the department to the certificate holder
that are based on improperly prepared or maintained documents, as
specified in paragraph (7) of subdivision (b) of Section 14538 and
paragraph (8) of subdivision (b) of Section 14539.
(c) If the department has a civil cause of action for restitution
pursuant to subdivision (a) or (b), or if the department has a civil
cause of action against a certificate holder or other responsible
party for restitution under any other circumstance, the department
may seek restitution in accordance with the following:
(1) For restitution of an amount of more than one thousand dollars
($1,000), the department shall proceed in a hearing in accordance
with Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code. The hearing may take place at
the same time as a hearing to impose disciplinary action on a
certificate holder.
(2) For restitution of an amount of one thousand dollars ($1,000)
or less, the department may use an informal hearing in accordance
with Article 10 (commencing with Section 11445.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code.
(d) Notwithstanding subdivisions (b) and (c) of Section 14591.1,
if the department collects amounts in full restitution for money
paid, the department may impose a penalty of not more than one
hundred dollars ($100) for each separate violation, or for continuing
violations, for each day that violation occurs.
14591.5. After the time for judicial review under Section 11523 of
the Government Code has expired, the department may apply to the
small claims court or superior court, depending on the jurisdictional
amount and any other remedy sought, in the county where the
penalties, restitution, or other remedy was imposed by the
department, for a judgment to collect any unpaid civil penalties or
restitution or to enforce any other remedy provided by this division.
The application, which shall include a certified copy of the final
agency order or decision, shall constitute a sufficient showing to
warrant the issuance of the judgment. The court clerk shall enter the
judgment immediately in conformity with the application. The
judgment so entered shall have the same force and effect as, and
shall be subject to all the provisions of law relating to, a judgment
in a civil action, and may be enforced in the same manner as any
other judgment of the court. The court shall make enforcement of the
judgment a priority.
14591.6. (a) When a person is engaged in recycling activity that
violates this division, any regulation adopted pursuant to this
division, or an order issued under this division, the department may
issue an order to that person to cease and desist from that activity.
(b) If a request for a hearing is filed in writing within 10 days
of the date of service of the order described in subdivision (a), a
hearing shall be held in accordance with Article 10 (commencing with
Section 11445.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2
of the Government Code. The director or the director's designee shall
determine whether to sustain or reverse the cease and desist order.
If sustained, the order shall become effective and final upon the
issuance and service of the order.
(c) If no written request for a hearing is filed within 10 days of
the date of service of the order described in subdivision (a), or if
a party requesting the hearing does not appear at the hearing, the
order shall be deemed the final order of the department and is not
subject to review by any court or agency. This order shall become
effective and final after the expiration of the 10-day period within
which a hearing may be requested.
(d) If a hearing is requested pursuant to subdivision (b) and the
party requesting the hearing does not appear on the date scheduled,
and fails to notify the department at least five days prior to the
hearing date that the party will not appear, the department may
recover from the party all costs and fees incurred by the department,
including attorneys' and experts' fees, and any other costs
associated with preparing for, or conducting, the hearing.
(e) Upon the failure of any person or persons to comply with any
cease and desist order issued by the department, the Attorney
General, upon request of the department, shall petition the superior
court for the issuance of a preliminary or permanent injunction, or
both, as may be appropriate, restraining the person from continuing
the activity in violation of the cease and desist order.
(f) The court shall issue an order directing defendants to appear
before the court at a certain time and place and show cause why the
injunction should not be issued. The court may grant the prohibitory
or mandatory relief that may be warranted.
14593. Notwithstanding subdivisions (b) and (c) of Section 14591.1,
the department may assess a civil penalty of up to 15 percent of the
amount due for payment, and interest at the rate earned by the
Pooled Money Investment Account, on distributors and beverage
manufacturers for underpayment or late payment of the redemption
payments for containers to the fund. The department may examine the
accounts and records of distributors and beverage manufacturers that
pay or should pay a redemption payment. No penalty shall be assessed
until 30 days after the department has notified the distributor or
manufacturer of the penalty assessment, and the amount due for
payment and interest has not been paid.
14594. (a) Notwithstanding subdivisions (b) and (c) of Section
14591.1, the department may assess a civil penalty of up to 15
percent of the amount due for payment, and interest at the rate
earned by the Pooled Money Investment Account, on a beverage
manufacturer that fails to pay a processing fee required pursuant to
Section 14575. The department may examine the accounts and records of
a beverage manufacturer that pays or should pay a processing fee. No
penalty shall be assessed until 30 days after the department has
notified the manufacturer of the penalty assessment, and the amount
due for payment and interest has not been paid.
(b) If the department determines that an audit of a beverage
manufacturer shows that there has been an underpayment of a
processing fee, the department may examine the records concerning
beverage container sales of a container manufacturer that supplied
the beverage containers to the beverage manufacturer.
14594.5. The department may assess upon any person, entity, or
operation which redeems, attempts to redeem, or aids in the
redemption of, empty beverage containers that have already been
redeemed, a civil penalty of up to ten thousand dollars ($10,000) per
transaction, or an amount equal to three times the damage or
potential damage, whichever is greater, plus costs as provided in
Section 14591.3, pursuant to notice and hearing in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code.
14590. If any provision of this division or the application thereof
to any person or circumstances is held invalid, that invalidity
shall not affect other provisions or applications of the division
which can be given effect without the invalid provision or
application, and to this end the provisions of this division are
severable.
14591. (a) Except as provided in subdivision (b), in addition to
any other applicable civil or criminal penalties, any person
convicted of a violation of this division is guilty of an infraction,
which is punishable by a fine of one hundred dollars ($100) for each
initial separate violation and not more than one thousand dollars
($1,000) for each subsequent separate violation per day.
(b) (1) Every person who, with intent to defraud, takes any of the
following actions is guilty of fraud:
(A) Submits a false or fraudulent claim for payment pursuant to
Section 14573 or 14573.5.
(B) Fails to accurately report the number of beverage containers
sold, as required by subdivision (b) of Section 14550.
(C) Fails to make payments as required by Section 14574.
(D) Redeems out-of-state containers, rejected containers, line
breakage, or containers that have already been redeemed.
(E) Returns redeemed containers to the marketplace for redemption.
(F) Brings out-of-state containers, rejected containers, or line
breakage to the marketplace for redemption.
(G) Submits a false or fraudulent claim for handling fee payments
pursuant to Section 14585.
(2) If the money obtained or withheld pursuant to paragraph (1)
exceeds nine hundred fifty dollars ($950), the fraud is punishable by
imprisonment in the county jail for not more than one year or by a
fine not exceeding ten thousand dollars ($10,000), or by both, or by
imprisonment in the state prison for 16 months, two years, or three
years, or by a fine not exceeding twenty-five thousand dollars
($25,000) or twice the late or unmade payments plus interest,
whichever is greater, or by both fine and imprisonment. If the money
obtained or withheld pursuant to paragraph (1) equals, or is less
than, nine hundred fifty dollars ($950), the fraud is punishable by
imprisonment in the county jail for not more than six months or by a
fine not exceeding one thousand dollars ($1,000), or by both.
(c) For purposes of this section and Chapter 8.5 (commencing with
Section 14595), "line breakage" and "rejected container" have the
same meanings as defined in the regulations adopted or amended by the
department pursuant to this division.
14591.1. (a) (1) The department may assess a civil penalty upon a
person who violates this division in an amount greater than one
thousand dollars ($1,000) pursuant to this division and any
regulations adopted pursuant to this division only after notice and
hearing in accordance with Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code.
(2) The department may assess a civil penalty upon a person who
violates this division in an amount equal to, or less than, one
thousand dollars ($1,000), using a notice of violation process
established by regulation and may use an informal hearing process
pursuant to Article 10 (commencing with Section 11445.10) of Chapter
4.5 of Part 1 of Division 3 of Title 2 of the Government Code.
(3) Each violation of this division is a separate violation and
each day of the violation is a separate violation. The department
shall deposit all revenues from civil penalties in the Penalty
Account specified in subdivision (d) of Section 14580.
(b) Any person who intentionally or negligently violates this
division may be assessed a civil penalty by the department pursuant
to subdivision (a) of up to five thousand dollars ($5,000) for each
separate violation, or for continuing violations, for each day that
violation occurs.
(c) Any person who violates this division by an action not subject
to subdivision (b) may be assessed a civil penalty by the department
pursuant to subdivision (a) of up to one thousand dollars ($1,000)
for each separate violation, or for continuing violations, for each
day that violation occurs.
(d) No person may be liable for a civil penalty imposed under
subdivision (b) and for a civil penalty imposed under subdivision (c)
for the same act or failure to act.
(e) In determining the amount of penalties to be imposed pursuant
to this division, the department shall take into consideration the
nature, circumstances, extent and gravity of the violation, the costs
associated with bringing the action and, with respect to the
violator, the ability to pay, the degree of culpability, compliance
history, and any other matters that justice may require.
14591.2. (a) The department may take disciplinary action against
any party responsible for directing, contributing to, participating
in, or otherwise influencing the operations of, a certified or
registered facility or program. A responsible party includes, but is
not limited to, the certificate holder, registrant, officer,
director, or managing employee. Except as otherwise provided in this
division, the department shall provide a notice and hearing in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code before taking any
disciplinary action against a certificate holder.
(b) All of the following are grounds for disciplinary action, in
the form determined by the department in accordance with subdivision
(c):
(1) The responsible party engaged in fraud or deceit to obtain a
certificate or registration.
(2) The responsible party engaged in dishonesty, incompetence,
negligence, or fraud in performing the functions and duties of a
certificate holder or registrant.
(3) The responsible party violated this division or any regulation
adopted pursuant to this division, including, but not limited to,
any requirements concerning auditing, reporting, standards of
operation, or being open for business.
(4) The responsible party is convicted of any crime of moral
turpitude or fraud, any crime involving dishonesty, or any crime
substantially related to the qualifications, functions, or duties of
a certificate holder.
(c) The department may take disciplinary action pursuant to this
section, by taking any one of, or any combination of, the following:
(1) Immediate revocation of the certificate or registration, or
revocation of a certificate or registration as of a specific date in
the future.
(2) Immediate suspension of the certificate or registration for a
specified period of time, or suspension of the certificate or
registration as of a specific date in the future. Notwithstanding
subdivision (a), the department may impose a suspension of five days
or less through an informal notice, if the action is subject to a
stay on appeal, pending an informal hearing convened in accordance
with Article 10 (commencing with Section 11445.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code.
(3) Imposition on the certificate or registration of any condition
that the department determines would further the goals of this
division.
(4) Issuance of a probationary certificate or registration with
conditions determined by the department.
(5) Collection of amounts in restitution of any money improperly
paid to the certificate holder or registrant from the fund.
(6) Imposition of civil penalties pursuant to Section 14591.1.
(d) The department may do any of the following in taking
disciplinary action pursuant to this section:
(1) If a certificate holder or registrant holds certificates or is
registered to operate at more than one site or to operate in more
than one capacity at one location, such as an entity certified as
both a processor and a recycling center, the department may
simultaneously revoke, suspend, or impose conditions upon some, or
all of, the certificates held by the responsible party.
(2) If the responsible party is an officer, director, partner,
manager, employee, or the owner of a controlling ownership interest
of another certificate holder or registrant, that other operator's
certificate or registration may also be revoked, suspended, or
conditioned by the department in the same proceeding, if the other
certificate holder or registrant is given notice of that proceeding,
or in a subsequent proceeding.
(3) (A) If, pursuant to notice and a hearing conducted by the
director or the director's designee in accordance with Article 10
(commencing with Section 11445.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code, the department
determines that the continued operation of a certified or registered
entity poses an immediate and significant threat to the fund, the
department may order the immediate suspension of the certificate
holder or registrant, pending revocation of the certificate or
registration, or the issuance of a probationary certificate imposing
reasonable terms and conditions. The department shall record the
testimony at the hearing and, upon request, prepare a transcript. For
purposes of this section, an immediate and significant threat to the
fund means any of the following:
(i) A loss to the fund of at least ten thousand dollars ($10,000)
during the six-month period immediately preceding the order of
suspension.
(ii) Missing or fraudulent records associated with a claim or
claims totaling at least ten thousand dollars ($10,000) during the
six-month period immediately preceding the order of suspension.
(iii) A pattern of deceit, fraud, or intentional misconduct in
carrying out the duties and responsibilities of a certificate holder
during the six-month period immediately preceding the order of
suspension. For purposes of this section, a pattern of deceit, fraud,
or intentional misconduct in carrying out the duties of a
certificate holder includes, but is not limited to, the destruction
or concealment of any records six months immediately preceding the
order of suspension.
(iv) At least three claims submitted for ineligible material in
violation of this division, including, but not limited to, a
violation of Section 14595.5, during the six-month period immediately
preceding the order of suspension.
(B) An order of suspension or probation may be issued to any or
all certified or registered facilities or programs operated by a
person or entity that the department determines to be culpable or
responsible for the loss or conduct identified pursuant to
subparagraph (A).
(C) The order of suspension or issuance of a probationary
certificate imposing terms or conditions shall become effective upon
written notice of the order to the certificate holder or registrant.
Within 20 days after notice of the order of suspension, the
department shall file an accusation seeking revocation of any or all
certificates or registrations held by the certificate holder or
registrant. The certificate holder or registrant may, upon receiving
the notice of the order of suspension or probation, appeal the order
by requesting a hearing in accordance with Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. A request for a hearing or appeal from an order of the
department does not stay the action of the department for which the
notice of the order is given. The department may combine hearings to
appeal an order of suspension and a hearing for the proposed
revocation of a certificate or registration into one proceeding.
(D) Nothing in this section shall prohibit the department from
immediately revoking a probationary certificate pursuant to
subdivision (b) of Section 14541 or from taking other disciplinary
action pursuant to Section 14591.2.
14591.3. In any civil or administrative action brought pursuant to
this division in which the department prevails, the department may
assess against the defendant or respondent any costs and fees,
including attorneys' and experts' fees, and the cost of the
investigation and hearing, which are incurred by the fund, whether
paid or payable from the fund, and are a result of bringing the civil
or administrative action against the defendant or respondent. In the
same action, the defendant or respondent may claim from the
department any costs and fees incurred in defending or responding to
any action brought by the department in which the defendant or
respondent prevails, upon a finding that the department's action was
clearly frivolous or lacking in significant merit.
14591.4. (a) In addition to any other remedies, penalties, and
disciplinary actions provided by this division or otherwise, the
department may seek restitution of any money illegally paid to any
person from the fund, plus interest at the rate earned on the Pooled
Money Investment Account of the total amount.
(b) A certificate holder is liable to the department for
restitution pursuant to paragraph (5) of subdivision (c) of Section
14591.2 for payments made by the department to the certificate holder
that are based on improperly prepared or maintained documents, as
specified in paragraph (7) of subdivision (b) of Section 14538 and
paragraph (8) of subdivision (b) of Section 14539.
(c) If the department has a civil cause of action for restitution
pursuant to subdivision (a) or (b), or if the department has a civil
cause of action against a certificate holder or other responsible
party for restitution under any other circumstance, the department
may seek restitution in accordance with the following:
(1) For restitution of an amount of more than one thousand dollars
($1,000), the department shall proceed in a hearing in accordance
with Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code. The hearing may take place at
the same time as a hearing to impose disciplinary action on a
certificate holder.
(2) For restitution of an amount of one thousand dollars ($1,000)
or less, the department may use an informal hearing in accordance
with Article 10 (commencing with Section 11445.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code.
(d) Notwithstanding subdivisions (b) and (c) of Section 14591.1,
if the department collects amounts in full restitution for money
paid, the department may impose a penalty of not more than one
hundred dollars ($100) for each separate violation, or for continuing
violations, for each day that violation occurs.
14591.5. After the time for judicial review under Section 11523 of
the Government Code has expired, the department may apply to the
small claims court or superior court, depending on the jurisdictional
amount and any other remedy sought, in the county where the
penalties, restitution, or other remedy was imposed by the
department, for a judgment to collect any unpaid civil penalties or
restitution or to enforce any other remedy provided by this division.
The application, which shall include a certified copy of the final
agency order or decision, shall constitute a sufficient showing to
warrant the issuance of the judgment. The court clerk shall enter the
judgment immediately in conformity with the application. The
judgment so entered shall have the same force and effect as, and
shall be subject to all the provisions of law relating to, a judgment
in a civil action, and may be enforced in the same manner as any
other judgment of the court. The court shall make enforcement of the
judgment a priority.
14591.6. (a) When a person is engaged in recycling activity that
violates this division, any regulation adopted pursuant to this
division, or an order issued under this division, the department may
issue an order to that person to cease and desist from that activity.
(b) If a request for a hearing is filed in writing within 10 days
of the date of service of the order described in subdivision (a), a
hearing shall be held in accordance with Article 10 (commencing with
Section 11445.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2
of the Government Code. The director or the director's designee shall
determine whether to sustain or reverse the cease and desist order.
If sustained, the order shall become effective and final upon the
issuance and service of the order.
(c) If no written request for a hearing is filed within 10 days of
the date of service of the order described in subdivision (a), or if
a party requesting the hearing does not appear at the hearing, the
order shall be deemed the final order of the department and is not
subject to review by any court or agency. This order shall become
effective and final after the expiration of the 10-day period within
which a hearing may be requested.
(d) If a hearing is requested pursuant to subdivision (b) and the
party requesting the hearing does not appear on the date scheduled,
and fails to notify the department at least five days prior to the
hearing date that the party will not appear, the department may
recover from the party all costs and fees incurred by the department,
including attorneys' and experts' fees, and any other costs
associated with preparing for, or conducting, the hearing.
(e) Upon the failure of any person or persons to comply with any
cease and desist order issued by the department, the Attorney
General, upon request of the department, shall petition the superior
court for the issuance of a preliminary or permanent injunction, or
both, as may be appropriate, restraining the person from continuing
the activity in violation of the cease and desist order.
(f) The court shall issue an order directing defendants to appear
before the court at a certain time and place and show cause why the
injunction should not be issued. The court may grant the prohibitory
or mandatory relief that may be warranted.
14593. Notwithstanding subdivisions (b) and (c) of Section 14591.1,
the department may assess a civil penalty of up to 15 percent of the
amount due for payment, and interest at the rate earned by the
Pooled Money Investment Account, on distributors and beverage
manufacturers for underpayment or late payment of the redemption
payments for containers to the fund. The department may examine the
accounts and records of distributors and beverage manufacturers that
pay or should pay a redemption payment. No penalty shall be assessed
until 30 days after the department has notified the distributor or
manufacturer of the penalty assessment, and the amount due for
payment and interest has not been paid.
14594. (a) Notwithstanding subdivisions (b) and (c) of Section
14591.1, the department may assess a civil penalty of up to 15
percent of the amount due for payment, and interest at the rate
earned by the Pooled Money Investment Account, on a beverage
manufacturer that fails to pay a processing fee required pursuant to
Section 14575. The department may examine the accounts and records of
a beverage manufacturer that pays or should pay a processing fee. No
penalty shall be assessed until 30 days after the department has
notified the manufacturer of the penalty assessment, and the amount
due for payment and interest has not been paid.
(b) If the department determines that an audit of a beverage
manufacturer shows that there has been an underpayment of a
processing fee, the department may examine the records concerning
beverage container sales of a container manufacturer that supplied
the beverage containers to the beverage manufacturer.
14594.5. The department may assess upon any person, entity, or
operation which redeems, attempts to redeem, or aids in the
redemption of, empty beverage containers that have already been
redeemed, a civil penalty of up to ten thousand dollars ($10,000) per
transaction, or an amount equal to three times the damage or
potential damage, whichever is greater, plus costs as provided in
Section 14591.3, pursuant to notice and hearing in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code.
