Published: 2015-07-09
Key Benefits:
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.
(Added by Stats. 1986, Ch. 1290, Sec. 2. Effective September 29, 1986.)
(a) Except as provided in subdivision (b), in addition to any other applicable civil or criminal penalties, a person convicted of a violation of this division, or a regulation adopted pursuant to 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, knowingly takes any of the following actions is guilty of a crime:
(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 California marketplace for redemption.
(F) Brings out-of-state containers, rejected containers, or line breakage to the California 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), a person convicted of a crime pursuant to paragraph (1) is subject to punishment by imprisonment in a county jail for not more than one year, by a fine not exceeding ten thousand dollars ($10,000), or by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months, 2 years, or 3 years, 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 that fine and imprisonment. If the money obtained or withheld pursuant to paragraph (1) equals, or is less than, nine hundred fifty dollars ($950), the person is subject to punishment by imprisonment in a county jail for not more than six months, by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.
(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.
(Amended by Stats. 2013, Ch. 356, Sec. 21. Effective September 26, 2013.)
(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.
(Amended by Stats. 2000, Ch. 731, Sec. 17. Effective January 1, 2001.)
(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.
(7) Suspension for a specified period of time or permanent revocation of eligibility of a supermarket site, rural region recycler, or a nonprofit convenience zone recycler to receive handling fees at one or more of the certificate holder’s certified recycling centers.
(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.
(Amended by Stats. 2014, Ch. 597, Sec. 4. Effective January 1, 2015.)
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.
(Added by Stats. 1991, Ch. 1069, Sec. 18.)
(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.
(Amended by Stats. 2000, Ch. 731, Sec. 19. Effective January 1, 2001.)
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.
(Amended by Stats. 2002, Ch. 784, Sec. 583. Effective January 1, 2003.)
(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.
(Amended by Stats. 2001, Ch. 874, Sec. 12. Effective October 14, 2001.)
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.
(Amended by Stats. 2008, Ch. 696, Sec. 24. Effective September 30, 2008.)
(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.
(Amended by Stats. 2008, Ch. 696, Sec. 25. Effective September 30, 2008.)
(a) Notwithstanding Section 14591.1, the department may assess upon any person, entity, or operation that redeems, attempts to redeem, or aids in the redemption of, empty beverage containers that have already been redeemed, or redeems, attempts to redeem, or aids in the redemption of, otherwise ineligible beverage containers, including, but not limited to, out-of-state containers or empty beverage container materials imported from out of state, 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.
(b) For purposes of this section, the act of labeling a beverage container pursuant to subdivision (a) of Section 14561 shall not, in and of itself, be deemed to aid in the redemption of ineligible beverage containers.
(Amended by Stats. 2014, Ch. 597, Sec. 5. Effective January 1, 2015.)
