Notice Requirements Governing CAC Hearings

In April 2008, the Director of the Department of Pesticide Regulation (DPR) received a decision issued by the Fifth Appellate District Court of Appeals that governs how County Agriculture Commissioners (CACs) must prepare for administrative civil penalty actions.

The Court of Appeals upheld the Director´s Decision. However, they also made important rulings about the Agricultural Civil Penalty hearing process authorized by Food and Agricultural Code (FAC) section 12999.5. The Court of Appeals found the CAC is “an agency created or appointed by joint or concerted action of the state and one or more local agencies” under Government Code (GC) section 11410.30(c). This means the CAC hearing process must comply with Chapter 4.5 of the Administrative Procedure Act (APA), beginning at GC section 11400.

APA Chapter 4.5 sets forth certain basic requirements intended to ensure a fair hearing. These requirements are consistent with the Department´s existing guidance regarding CAC hearings. Complying with APA Chapter 4.5 will not require fundamental changes in the way CAC hearings are currently conducted, except that DPR is also directing CACs to apply this guidance to Structural Civil Penalty hearings authorized by Business and Professions Code (BPC) section 8617.5.

Of particular note is the requirement to attach a copy of the “Preparing for Your Administrative Pesticide Penalty Hearing” (tri-fold brochure or Word text version) to the Notice of Proposed Action (NOPA) to ensure “notice” requirements are met. DPR is aware that in the past this was not a common procedure. The following requirements should be reviewed and followed to assure a court will not overrule a Commissioner´s decision based on the failure to meet the requirements of Chapter 4.5 of the APA.

APA Requirements

• The CAC must give the respondent notice and an opportunity to be heard, including the opportunity to present and rebut evidence [GC section 11425.10(a)(1)]. This is not a new requirement.
• The CAC must make a copy of the procedure governing the hearing available to the respondent and include a statement that the formal hearing provisions of Chapter 5 of the APA do not apply to the proceeding [GC section 11425.10(a)(2)]. This is not a new requirement.
• The CAC must send the description of its hearing procedure to the respondent with the notice of hearing that conforms to the APA requirements. The CAC must inform the respondent in the description of the process that the provisions relating to the formal hearings under Chapter 5 of the APA (GC sections 11500-11529) do not apply. This is a new requirement.
• With limited exceptions, the hearing officer must open the hearing to public observation [GC section 11425.10(a)(3)]. This is not a new requirement.
• If anyone participating or observing a hearing disobeys a lawful order from the hearing officer not to disrupt or interfere with the hearing, or otherwise engages in disorderly, contemptuous or insolent behavior toward the hearing officer, the hearing officer may cite them for contempt (GC sections 11455.10 – 11455.30). This is not a new requirement.
• The CAC must separate the adjudicative function from the investigative, prosecutorial and advocacy functions within the agency [GC section 11425.10(a)(4)]. This is not a new requirement.
• The hearing officer is subject to disqualification for bias, prejudice or interest [GC section 11425.10(a)(5)]. This is not a new requirement.
• The decision shall be in writing, be based on the record and include a statement of the factual and legal basis of the decision [GC section 11425.10(a)(6)]. This is not a new requirement.
• The hearing officer and the CAC must not communicate separately with a party, party representative, investigator/witness or advocate about an issue in the case without the other party present (ex parte communication). This does not include non-controversial matters of practice or procedure, such as scheduling. If the hearing officer does engage in ex parte communication, the APA provides a procedure to cure the noncompliance (GC sections 11430.10 – 11430.80). This is not a new requirement.

There is additional commentary and advice on each of the above-listed bullet directives in CAC Letter ENF 08-10.

DPR publishes a tri-fold brochure and a Word text version of the brochure describing the hearing process to ensure CACs meet the requirements of Chapter 4.5 of the APA. Copies of both versions of the brochures are enclosed for your convenience. CACs may order the tri-fold version of the brochure (PR-ENF-086, Rev. 10/08) via the routine forms requisition process.

Use the enclosed brochure, either in tri-fold or letter format, for FAC section 12999.5 and/or BPC section 8617.5 hearings. If you publish your own hearing brochure, work through your Enforcement Branch Liaison to have Enforcement headquarters review the brochure for conformance with APA requirements.

Please make this information available as soon as possible to your staff so they may comply with notice requirements as they prepare cases for hearing.

If you have any questions, please contact the Enforcement Branch Liaison assigned to your county.

Sincerely,