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HomeMy WebLinkAboutREDdekleinepresentationsjCOUNCILLT/ C DD°- From :Arthur DeKleine[SMTP :ADEKLEIN@CALPOLY .EDU].&it mac..O FIN DI RSent:Sunday, January 31, 2010 9 :46 :01 PM L _ErFIRE CHIE FL~'ATTORNEYATTORNEYTo:Council, SloCity :??W DI RSubject:Thursday Farmers' Market Considerations and Recommendations CfiCLERK/ORIQ ITPOLICE CH FAuto forwarded by a Rule 11 DEPT HEADS C -REC DI R12T-0 TIL DH [2-1-IR.DI R Nezo -ri 5 r ued To Members of the San Luis Obispo City Council, My name is Arthur DeKleine and I am a resident of San Luis Obispo, residing at 102 2 San Adriano . I am concerned about the apparent "takeover" of the Thursday evening Farmers' Marke t in San Luis Obispo by the SLO Downtown Association from the San Luis Obisp o County Farmers' Market Association (SLOFMA)with the approval of the San Lui s Obispo County Agricultural Commissioner . Newspaper accounts and man y conversations with SLOFMA participants indicate that they did not anticipate this abrup t termination of a 27-year relationship . I hope that this "takeover" was not anticipated by, or made in cooperation with the wishe s and intent of, the San Luis Obispo City Council ! I think that giving the SLO Downtown Association responsibility for maintaining a Certifie d Farmers' Market will change the character of the market in undesirable ways . It is my understanding that we now have two organizations with a Certified Farmers' Marke t permit approved by the San Luis Obispo County Agricultural Commissioner to operate a Farmers' Market on Thursday nights in downtown San Luis Obispo, but one of the m claims a contracted right to use the property and the other a long-standing historica l agreement . I would like to see the SLO Downtown Association given responsibility for the Thursda y evening non- farmers' market activities and the SLOFMA given responsibilities for th e Thursday evening farmers' market activities . I hope that a contract can be negotiated wit h and between the three parties formalizing that division of responsibility . A writte n contract for use of the downtown property and for the responsible maintenance o f a Certified Farmers' Market lies at the heart of this issue! RED FIL E MEETING AGEND A DATE a/2-1,°ITEM 2)outlining the history and legal responsibilities for a Certified Farmers' Market , 3)making an argument for giving SLOFMA the responsibility for maintaining a Certifie d Farmer's Market in San Luis Obispo on Thursday evenings . In attachments to this letter I am 1) outlining my understanding of the dispute . 4) proposing ways to address changes in the farmers' market that may be necessary fro m time to time . Thank you for considering my points of view . Sincerely , Herbert Arthur DeKlein e Attachments : 1)My understanding of this dispute . I think that this dispute is an effort by the SLO Downtown Association to get more money from the farmers doing business in SLO . It may also involve an effort to control marke t activities . I would be surprised if the SLO Downtown Association has the collective understanding of th e legal responsibilities of a Certified Farmers' Market, a realistic understanding of interes t of the farmers' perspective, or a good understanding of the community's desire to hav e fresh flowers, fruits, and vegetables from local farmers . I also suspect that the surprisingly quick, un-negotiated break in a long-standin g relationship (a contract if you will) between SLOFMA and the City of San Luis Obispo , and the transfer of authority from one Certified Farmers' Market to the other, had more t o do with the idea that possession of authority and unwritten contractual agreements wit h the growers trump the fact that the SLO Downtown Association does not meet the lega l requirements to operate a Certified Farmers' Market (See the attached CA Gov . documents) than it does over a disagreement with SLOFMA 's operation of the market . 2)An outline of the history and legal responsibilities for a Certified Farmers' Market . A lot has been said and written about the value of fresh fruits and vegetables being sol d in a community by local farms . I will not say a lot more about these issues, but refer th e Council to a valuable web site from the UC Small Farm Program that addresses thes e issues : www .sfc .ucdavis .edu/farmers market / During the 1970s and 1980s, the United States witnessed a nationwide resurgence o f interest in local farmers' markets for many reasons outlined in the UC Davis reference . To help facilitate direct marketing by local farmers and minimize zoning conflicts, a se t of laws were put in place to facilitate and regulate that interest by the public and by small local farmers . [ Other states, like Michigan, passed Right-to-farm laws whereby an y small farmer (city resident, for example) can grow and sell (on the street curb, fo r example) without interference .] I strongly encourage the SLO City Council and the City Attorney to review the followin g documents . The CA Code laws are summarized in the following document,Certified Farmers ' Markets Guidelines : CALIFORNIA CONFERENCE O F DIRECTORS OF ENVIRONMENTAL HEALT H ENVIRONMENTAL HEALTH REQUIREMENTS FO R CERTIFIED FARMERS' MARKETS September,199 7 revised June, 199 9 BACKGROUN D This guideline for environmental health agency regulation of certified farmers' markets (CFMs ) is the result of a cooperative effort between the CCDEH Bay Area Food Technical Advisor y Committee, the California Department of Food and Agriculture, and directors of CFM s throughout California . The Food Technical Advisory Committee acknowledges the valuable contributions to thi s guideline from the Southern California, Central Valley, and Northern California Food Technica l Advisory Committees, the California Conference of Directors of Environmental Health, and th e California Department of Health Services . Local environmental health agencies are encouraged to adopt this guideline and reprint i t along with information pertinent to their business procedures . Statewide uniformity o f interpretation and enforcement will benefit both the regulatory and business communities . SCOP E Part 1 Laws and regulations governing certified farmers' markets —Part 1 brings together al l the code sections which cover an environmental health agency's regulator y responsibility at a CFM . Environmental health agencies are not responsible fo r enforcing the Direct Marketing Regulations of the Food and Agriculture Code . References to CCR, Title 3, have been included to provide clarification . Part 2 Questions and answers regarding environmental health agency regulation o f Certified Farmers' Markets -Part 2 is intended to promote uniformity of interpretatio n and enforcement throughout California . Part 3 Regulatory authority for agricultural products sold at Certified Farmers' Markets — Part 3 provides a guideline for determining the appropriate regulatory authority for th e production of various foods sold at a CFM . PART1 LAWS AND REGULATIONS GOVERNING CERTIFIED FARMERS' MARKET S The following laws are excerpted from the California Health and Safety Code, Chapter 4 , California Uniform Retail Food Facilities Law (CURFFL). Section numbers are included i n parentheses for reference at the end of each excerpt . Regulations from the Californi a Department of Food and Agriculture are also included for reference . Section number s Page 1 designated "CCR" are excerpted from the California Code of Regulations (CCR), Title 3, Foo d and Agricultural Code, Article 6 .5, Direct Marketing . DEFINITIONS 1.Agricultural products means certified and non-certifiable agricultural products, a s defined by the California Department of Food and Agriculture . (113745 ; CCR1392 .2 (k)) 2.Approved means acceptable to the enforcement agency based on a determination o f conformity with applicable laws, or, in the absence of applicable laws, current public healt h principles, practices, and generally recognized industry standards that protect public health . (113740 (a)) 3.Approved source means a producer, manufacturer, distributor, or food establishmen t that is acceptable to the enforcement agency based on a determination of conformity wit h applicable laws, or, in the absence of applicable laws, with current public health principle s and practices, and generally recognized industry standards that protect public health . (113740(b)) 4.Certified agricultural products means agricultural products, which are certified unde r the jurisdiction of the county agricultural commissioner relative to inspection an d verification of compliance with the provisions of the Direct Marketing regulations . They include fresh fruits, nuts, vegetables, shell eggs, honey, flowers, and nursery stock . (113745 ; CCR 1392 .2 (1)) 5.Certified Farmers' Market means a location certified by the County Agricultura l Commissioner and operated as specified in Article 6 .5 (commencing with Section 1392 ) of Title 3 of the California Code of Regulations . (113745 ) 6.Community event means an event that is of a civic, political, public, or educationa l nature, including state and county fairs, city festivals, circuses, and other similar event s as determined by the local enforcement agency . Community event shall not include a swap meet, flea market, swap mall, seasonal sporting event, grand opening celebration , anniversary celebration, or similar functions . 7.Enforcement officer means the director, agents, or environmental health specialist s appointed by the Director of Health Services, and all local health officers, directors o f environmental health, and their duly authorized registered environmental healt h specialists and environmental health specialist trainees . (113765 ) 8.Food preparation means packaging, processing, assembling, portioning, or an y operation which changes the form, flavor, or consistency of food, but does not includ e trimming of produce . (113790 ) 9.Non-certifiable agricultural products means all certified agricultural products that hav e been processed, those products other than certified agricultural products noted in (4 ) above from any tree, vine, or plant and their flowers (including processed products), an y horticultural (including floricultural), viticultural (including wine), vermicultural or apiar y products, poultry and poultry products, livestock (including rabbits) and livestock products , and fish and shellfish produced under controlled conditions in waters or ponds located i n California . (113745 ; CCR 1392 .2 (m) ) Page 2 10.Potentially hazardous food means food that is in a form capable of (1) supporting rapi d and progressive growth of infectious or toxicogenic microorganisms that may cause foo d infections or food intoxications, or (2) supporting the growth or toxin production o f Clostridium botulinum ."Potentially hazardous food"does not include foods that have a pH level of 4 .6 or below, foods that have a water activity (Aw) value of 0 .85 or less unde r standard conditions, food products in hermetically sealed containers processed to preven t spoilage, or food that has been shown by appropriate microbial challenge studie s approved by the enforcement agency not to support the rapid and progressive growth o f infectious or toxicogenic microorganisms that may cause food infections or foo d intoxications, or the growth and toxin production of Clostridium botulinum .(113845 ) 11.Produce means any fruit or vegetable in its raw or natural state . (11385 0 OPERATIONAL GUIDELINE S 1.A certified farmers' market is a food facility, as defined by CURFFL, and shall not be ope n for business without a valid health permit . The health permit shall be posted in a conspicuous place at the CFM . (113785 (a) (3); 113920 ) 2.Only agricultural products may be sold or offered for sale at a CFM . (113745 ;CCR 1392 .4 c ) 3.All food sold at a CFM shall be produced, packed, stored, transported, and kept for sal e so as to be pure, free from contamination, adulteration, and spoilage ; shall have bee n obtained from approved sources ; shall otherwise be fully fit for human consumption ; an d shall conform to the applicable provisions of the Sherman Food, Drug, and Cosmetic La w (Part 5 commencing with Section 109875). (113980 ) 4.All food shall be stored at least 6 inches off the floor or ground or under any othe r conditions which are approved . (114350 (a)) 5.Food preparation is prohibited at certified farmers' markets with the exception of the foo d samples . Distribution of food samples is allowed provided that the following sanitar y conditions exist : A.Samples shall be kept in approved, clean covered containers . B.The producer shall distribute all food samples in a sanitary manner . C.Clean, disposable plastic gloves shall be used when cutting food samples . D.Food intended for sampling shall be washed, or cleaned in another manner, of an y soil or other material by potable water in order that it is wholesome and safe fo r consumption . E.Potable water shall be available for handwashing and sanitizing as approved by th e local enforcement agency . F.Potentially hazardous food samples shall be maintained at or below 45 °F . All othe r food samples shall be disposed of within two hours after cutting . Page 3 G.Utensil and handwashing water shall be disposed of in a facility connected to th e public sewer system or in a manner approved by the local enforcement agency . H.Utensils and cutting surfaces shall be smooth, non-absorbent, and easily cleaned o r disposed of as approved by the local environmental health agency . (114350 (b)) 6.Processed foods must be produced and stored in an approved facility and properl y packaged and labeled . (113980) (14015 (a) (2)) 7.Dispensing methods for bulk sales of ready-to-eat, non-certifiable agricultural products , such as dried fruit and shelled nuts, shall be approved by the local enforcement agency. (113980 ) 8.Approved toilet and handwashing facilities shall be available within 200 feet of th e premises of the CFM, or as approved by the enforcement officer . (114350 (c)) 9.No live animals, birds, or fowl are kept or allowed within 20 feet of any area where food i s stored or held for sale . This subdivision does not apply to guide dogs, signal dogs, o r service dogs when used within the meaning specified by Section 54 .1 of the Civil Code . (114350 (d) ). 10.All garbage and rubbish shall be stored, and disposed of, in a manner approved by th e enforcement officer. (114350 (e)) 11.Potentially hazardous food shall be stored and displayed at or below 45°F . at all times . (113995(b) section 11060 (Sherman Law ) 12.All products sold as organic must be grown, produced, processed and labeled i n accordance with the Health and Safety Code beginning with Section 110810 (Californi a Organic Foods Act of 1990 .) This act is a portion of the California Sherman Food, Drug , and Cosmetic Law, which is contained in the Health and Safety Code . (113980 ) 13.Uninspected, processed red meat, poultry, fowl, or rabbits may not be sold . (113980 ) 14.Raw shell eggs may be stored and displayed without refrigeration if all of the followin g conditions are met : A.The eggs were produced by poultry owned by the seller and collected on the seller's property . B.The eggs are not placed in direct sunlight during storage or display . C.Retail egg containers are prominently labeled "REFRIGERATE AFTER PURCHASE " or the seller posts a conspicuous sign advising consumers that the eggs are to b e refrigerated as soon as practical after purchase . D.Retail egg containers are conspicuously identified as to the date of the pack . E.The eggs have been cleaned and sanitized . F.The eggs are not checked, cracked, or broken . G . Any eggs that are stored and displayed at temperatures of 90 degrees Fahrenheit o r Page 4 below and that are unsold after four days from the date of pack shall be stored an d displayed at an ambient temperature of 7 degrees Celsius (45 degrees Fahrenheit ) or below, diverted to pasteurization, or destroyed in a manner approved by th e enforcement agency . H . Any eggs that are stored and displayed at temperatures above 90 degree s Fahrenheit that are unsold after four days from the date of pack shall be diverted t o pasteurization or destroyed in a manner approved by the enforcement agency . 15.Vendors selling non-agricultural food products are required to have a valid permit fro m the local environmental health agency and are not considered part of the CFM . (113920 ) Note #1 :Nonagricultual products are food items other than certifie d agricultural products or noncertifiable agricultural products, such a s bakery products . Note #2 :"Vendors" refers to "Mobile Food Facilities" and not to "Temporar y 16.Notwithstanding Article 11 (commencing with Section 114250), vendors selling foo d adjacent to and under the jurisdiction and management of a certified farmers' market ma y store, display, and sell from a table or display fixture apart from the vehicle, in a manne r approved by the local environmental health agency . (114350 (f)) Note :"Vehicle" refers to "Mobile Food Facility". 17.Notwithstanding Section 113895, temporary food facilities may be operated as a separat e event adjacent to, and in conjunction with, certified farmers' markets that are operated as a community event by a nonprofit organization or a local government agency . Th e organization in control of the event at which one or more temporary food facilities operat e shall comply with Section 114314 . (114350 (g)) PART2 QUESTIONS AND ANSWERS REGARDING HEALTH DEPARTMENT REGULATION O F CERTIFIED FARMERS' MARKET S 1.Who is responsible for regulating Certified Farmers' Markets ? Local environmental health agencies are responsible for regulating CFMs as define d in the California Uniform Retail Food Facilities Law, Section 113745 . Health requirements for CFMs are contained in CURFFL, Article 15 . County Agricultural Commissioners are responsible for enforcing the California Code o f Regulations, Title 3, Article 6 .5, Direct Marketing Regulations . 2.Does a CFM need a health permit ? Yes . CFMs are defined in CURFFL as a food facility and therefore are required to have a valid health permit, including those CFMs where only certified agricultural products are sold . Fees for the permit and related services shall be determined by the local environmenta l health agency . Fees shall be sufficient to cover the actual expenses of administering an d enforcing this program . Page 5 3.Do I need a separate sponsor permit to have temporary food facilities adjacent t o my CFM ? Yes . CURFFL requires temporary food facilities to be organized and controlled by a sponsor and also requires a separate health permit for the sponsor . 4.Is a permit required for each producer selling agricultural products ? No . Since a CFM is defined in CURFFL as a food facility, all agricultural product s (certified and non-certifiable) sold at a CFM are part of that facility and covered under th e health permit for the CFM . Prior to the July 1991 change in the Direct Marketing Regulations, vendors sellin g processed food were required to have individual health permits . Now, products meetin g the definition of noncertifiable agricultural products have been added to those food s which can be sold at a CFM . However, noncertifiable agricultural products must still b e produced under inspection by the appropriate regulatory authority . Proof of an approve d source for each food product is also still required . The CFM manager should maintain a copy of each vendor's documentation, at the CFM location, for review by the enforcemen t officer . Since one health permit will cover all vendors that are part of the CFM, the CFM permi t holder is responsible for ensuring that each vendor complies with all applicable healt h codes . Noncompliance by a single vendor may be cause for suspension or revocation o f the permit . Vendors selling food other than agricultural products, such as bread, are not considere d part of the CFM . Each vendor selling nonagricultural food products must have their ow n health permit . 5.What is a "noncertifiable agricultural product" and what are some of these product s that may be found in a CFM ? These products are part of the definition of agricultural products, but are not certified b y the agricultural commissioner . Products that are considered noncertifiable includ e processed products from certified agricultural products such as fruit and vegetable juices , shelled nuts, jams and jellies, and wine . Other examples include catfish, trout, an d oysters from controlled aquaculture operations, livestock and livestock products, an d poultry and poultry products . Though these products are not "certified," they must have been produced or derived fro m plants or animals raised or produced by the producer . These noncertifiable processed agricultural products may include, or have added to them, a limited number of ingredient s or additives which act only as preservatives or are essential in the preparation of th e product . Examples include pickles and cucumbers in a brine or vinegar solution for curin g or pickling, natural smoking of meat or poultry for drying and preserving, flavorings suc h as smokehouse, hickory, or jalapeno added to shelled nuts which do not change th e visual identity of the product, sulfites added to dried fruits and vegetables, and sugar, frui t juices, and pectin added to fruits to make jams and jellies . Noncertifiable agricultural food products must be from an "approved source ." Page 6 6 .What is considered an "approved source?" Facilities that possess a valid Certified Producer Certificate by the seller are considere d an approved source for certified agricultural products . For non-certifiable agricultural foo d products, the processing and storage location must be under regulation by an authorit y acceptable to the State Department of Health Services or local environmental healt h agency . Examples of approved sources include facilities that possess : •A Food Registration from the State Food and Drug branch . •A local environmental health agency permit from the jurisdiction where productio n takes place . •A federal inspection certificate . See Part 3 : "REGULATORY AUTHORITY FOR AGRICULTURAL PRODUCTS SOL D 7.Can nonagricultural products be sold at a CFM ? No . Only certified and noncertifiable agricultural products may be sold in the "designate d area" of the CFM . The exclusion of nonagricultural products is intended to maintain th e intent and integrity of a CFM, which is the direct sale of products produced solely by th e producer . Enforcement of the separation rule is the responsibility of the local agricultura l commissioner . However, nonagricultural products may be sold adjacent to a CFM . Not withstandin g Article 11 (commencing with Section 114250), operators of mobile food facilities sellin g food adjacent to and under the jurisdiction and management of a certified farmers' marke t may store, display, and sell from a table or display fixture apart from the vehicle, in a manner approved by the local enforcement agency, consistent with Article 11 of CURFFL . 8.What does "vendors selling food adjacent to and under the jurisdiction an d management of a certified farmers' market" mean ? This phrase means vendors who are selling nonagricultural products on propert y controlled by the CFM manager and who contract with the CFM manager for a sale s space . Vendors who meet these requirements may store, display, and sell from a table o r display fixture apart from the vehicle, in a manner approved by the local enforcemen t agency, consistent with CURFFL, Article 11 . 9.Can Mobile Food Facility (MFF) foods be sold from a table ? Tables or other approved display fixtures that are apart from the vehicle may be use d only for storage, display, and sale of food . Approval of the local jurisdiction must b e obtained prior to selling any foods from a table . 10.What are acceptable ways of displaying agricultural products at a CFM ? In most cases, certified and noncertifiable agricultural products are displayed on tables . Section 114350 requires that food shall be stored at least 6 inches off the floor or groun d or under any other conditions which are approved . Bulk ready-to-eat foods, such as shelled nuts and dried fruit, shall be protected fro m Page 7 contamination . Acceptable methods include prepackaging food at an approved facility, o r displaying food in approved containers with lids . Dispensing methods shall avoid direc t hand contact with ready-to-eat food, and be approved by the local environmental healt h agency . 11 . What are acceptable ways of selling "salad mixes?" Certain types of lettuce are harvested as single leaves and can be combined to create a "salad mix ." However, any processing of produce beyond trimming, such as chopping o r shredding, or selling a salad mix as "washed, ready-to-eat," would be considered foo d preparation and subject to CURFFL requirements for processed food . 12 .Is sampling permitted at a CFM ? Yes . Preparation and distribution of food samples from agricultural products is allowe d provided that the following sanitary conditions exist : A.Samples shall be kept in approved, clean covered containers . B.All food samples shall be distributed by the producer in a sanitary manner . C.Clean, disposable plastic gloves shall be used when cutting food samples . D.Food intended for sampling shall be washed, or cleaned in another manner, of an y soil or other material by potable water in order that it is wholesome and safe fo r consumption . E.Potable water shall be available for handwashing and sanitizing as approved by th e local enforcement agency . F.Potentially hazardous food samples shall be maintained at or below 45°F . All othe r food samples shall be disposed of within two hours after cutting . G.Utensil and handwashing water shall be disposed of in a facility connected to th e public sewer system or in a manner approved by the local environmental healt h agency . H.Utensils and cutting surfaces shall be smooth, nonabsorbent, and easily cleaned o r disposed of as approved by the local environmental health agency . 13 . Are hot samples of potentially hazardous food permitted at a CFM ? No . Section 114350 (b) (6) states that potentially hazardous food samples shall b e maintained at or below 45° F . 14 . Is sampling permitted by vendors operating adjacent to a CFM ? Vendors operating mobile food facilities or mobile food preparation units may provid e samples if they are in compliance with CURFFL Articles 11 or 12 . These requirements may be more restrictive than the sampling requirements for vendors of agricultura l products at the CFM . Page 8 15.Can uninspected, processed poultry be sold at a CFM ? No . The Department of Food and Agriculture exemption from State law that require s inspection and licensing of poultry slaughter plants does not apply to sales at retail foo d facilities . Since the CFM is a retail food facility and the Direct Marketing Regulation s require compliance with CURFFL, uninspected poultry and rabbits would not be from a n approved source . Therefore they could not be sold at a CFM . Producers raising poultry for sale at a CFM should request inspection and licensing fro m the California Department of Food and Agriculture, Meat and Poultry Inspection Branch , or have their poultry processed at a licensed facility . 16.Can uninspected red meat be sold at a CFM ? No . All red meat must be from an approved source . A "custom cut" operation unde r inspection by the State Department of Food and Agriculture is not an approved source fo r retail sales of red meat . The United States Department of Agriculture is the recognize d regulatory authority for inspection of cattle, calf, sheep, swine and goat processing plants . 17.Can food facilities such as restaurants purchase agricultural products at a CFM ? Yes . However, fresh fruits, nuts, and vegetables may only be sold to " when complying with all applicable regulations, including standard pack, standar d containers, and labeling requirements . The local agricultural commissioner enforce s these requirements . 18.Can potentially hazardous foods be sold at a CFM ? Yes . Potentially hazardous foods, including but not limited to, raw shell eggs (see ite m #14 under "Operational Guidelines"), pasteurized milk products, live molluscan shellfish , and potentially hazardous food samples, must be stored and displayed at or below 45°F at all times . Although CURFFL currently only requires that CFMs meet the provisions o f Articles 6 and 15 of CURFFL, the Direct Marketing Regulations require that CFMs shal l also comply with the applicable requirements of Article 7 . Since there is generally onl y short-term holding of potentially hazardous foods at CFMs, the 45°F requirement rathe r than 41°F is appropriate for periods not exceeding 12 hours in any 24 hour period, excep t that 45°F is appropriate for those foods noted above . Ice chests may be used for refrigeration purposes with the approval of the local enforcin g agency only if the potentially hazardous foods contained therein can be held at th e required temperatures . 19.What type of seafood can be sold at a CFM ? Only fish and shellfish produced under controlled conditions in waters or ponds located i n California may be sold at a CFM . The agricultural commissioner enforces thi s requirement . Seafood, including live molluscan shellfish, is considered a potentiall y hazardous food and must be held at or below 45°F . No cutting or filleting is allowed at a CFM . 20.What is required on a label for packaged food ? Page 9 Labeling of packaged foods must include : name and address of the manufacturer , producer, or distributor ; accurate statement of quantity of the contents in terms of weight , measure or numerical count ; name of product ; ingredients, if two or more ingredients ar e present, listed by order of their predominance by weight, e .g . peanuts, salt . For the complete list of requirements for food labels, contact the Food and Drug Branch , California Department of Health Services . 21 . Can a temporary food facility operate at a CFM ? No . But a temporary food facility may legally operate as a part of a community even t adjacent to and in conjunction with a CFM if : A.Each temporary food facility has a separated health permit, an d B.The CFM organizer obtains a sponsor health permit for the community event if ther e is no other permitted person or organization that is in control of the communit y event, an d C.The temporary food facilities comply with all applicable requirements of Articles 1 3 and 13 .5 PART3 REGULATORY AUTHORITY FOR AGRICULTURAL PRODUCTS SOLD AT CERTIFIE D FARMERS' MARKET S The California Uniform Retail Food Facilities Law requires that all food at a certified farmers ' market be obtained from approved sources . The following agencies regulate the growing o r processing of the indicated food products . Acceptance of an approved source is up to th e local environmental health agency . 1.County Agricultural Commissione r 2.California Department of Health Services, Food and Drug Branc h 3.California Department of Fish and Gam e 4.California Department of Food and Agriculture, Meat and Poultry Inspection Branc h 5.California Department of Food and Agriculture, Bureau of Milk and Dairy Foods Contro l 6.United States Department of Agriculture, Food Safety and Inspection Servic e 7.Local Environmental Health Agenc y PRODUCT REGULATORY AUTHORITY FRUITS AND VEGETABLES :fresh, whole 1 processed 2 or 7* Page 10 NUTS :fresh, whole 1 processed 2 or 7 * SPROUTS 1 SHELL EGGS 1 HONEY 1 JUICES 2 OR 7 * JAMS AND PRESERVES 2 OR 7 * LOW ACID CANNED FOODS 2 POULTRY :live non e Processed 4** or 6 FISH AND SHELLFISH 2&3 RED MEAT:fresh 6 Processed (cured, smoked)6 &4 DAIRY PRODUCTS 5 *In most cases, the Food and Drug Branch regulates wholesale operations . Food Processors who sell only at retail are usually regulated by the local environmental health agency . **The exemption from CA Dept . of Food and Agriculture (CDFA) inspection of poultry does no t apply when sales occur at CFMs . Inspection must be requested from CDFA . Page 1 1 TITLE 3 . DEPARTMENT OF FOOD AND AGRICULTUR E ARTICLE 6 .5 DIRECT MARKETIN G (Notice published June 15, 2007 ) NOTICE OF PROPOSED RULEMAKIN G NOTICE IS HEREBY GIVEN that the California Department of Food and Agricultur e (Department) proposes to amend, Title 3, Article 6 .5 of the California Code o f Regulations (CCR) Sections 1392, 1392 .2(a), 1392 .2(b), 1392 .4(d), 1392 .6(b), an d 1392 .6 (f). The Department also proposes to add the following subsections : 1392 .2(u), (v), (w), (x), (y); 1392 .4(k); 1392 .6(f)(1), (2); 1392 .9(e); and 1392 .11(e). The Department has not scheduled a public hearing on this proposed action . However , the Department will hold a hearing if it receives a written request for a public hearin g from any interested person, or his or her authorized representative, no later than 1 5 days before the close of the written comment period . WRITTEN COMMENT PERIO D Any interested person, or his or her authorized representative, may submit writte n comment relevant to the proposed regulatory action to the Department . The writte n comment period closes at 5 :00 p .m . on July 30, 2007 . The Department will conside r only comments received at the Department offices by that time . Submit comments to : Rick S . Jensen, Chie f Inspection and Compliance Branc h California Department of Food and Agricultur e 1220 N Street Sacramento, CA 9581 4 AUTHORITY AND REFERENC E Notice is hereby given that the Department of Food and Agriculture, pursuant to th e authority vested by Sections 401, 407, 42681, 42682, 42684, 47000, 47001, 47002 , 47003, 47004, 47020 and 47022 of the Food and Agricultural Code, and to implement , interpret, or make specific Sections 821, 42681, 47000, 47002, 47003, 47004, an d 47004 .1 of the Food and Agricultural Code, proposes to amend regulations in Title 3 o f the California Code of Regulations . INFORMATIVE DIGEST/POLICY STATEMENT OVERVIE W Section 1392 of the California Code of Regulations (CCR) expresses the intent of Articl e 6 .5 Direct Marketing regulations . The specific purpose of amending Section 1392 is t o further clarify the intent of the article . 1 Section 1392 .2 (a) of the CCR further defines the term "Certified Farmers' Market". I t states who may operate a farmers' market . Amending this section adds the word "only" which clarifies that the options listed are not examples, but the specific entities that ma y operate the market . Section 1392 .2 (b) of the CCR defines and specifies conditions for valid Certifie d Farmers' Market certificates . The amendment makes clear that the operator is liabl e and responsible for the market operation and regulatory compliance as a condition o f being issued a certificate . Existing Section 1392 .2, of the CCR establishes definitions governing the constructio n of the language in this article . The specific purpose of amending CCR, Section 1392 .2 (u), (v), (w), (x) and (y) is to add definitions of processed agricultural products, and th e preservatives, seasonings, flavorings, and food coloring allowed in those products . These definitions will make clarifications to enhance the uniformity of products sold a t the markets . Existing Section 1392 .4 of the California Code of Regulations establishes conditions o f direct marketing . The specific purpose of amending Section 1392 .4 (d) is to add th e word "valid" to the requirement that the embossed certificate be present durin g transportation and at point of sale . This will ensure expired certificates cannot be use d to comply with this section . The specific purpose of amending Section 1392 .4 (k) is to require the seller of processed products to document compliance with production requirements reference d in section 1392 .2 (k) and to have that documentation available at the point of sale . I t would restrict the quantities of the processed products to be less than the amount o f fresh commodities listed on the certificate . It would require that the included ingredient s not of their own production (other than sugar and water) must be the last ingredients listed on the label required by the Food and Drug Administration . CCR Section 1392 .6 lists the certification requirements of a certified farmers' market . The specific purpose of amending CCR, Section 1392 .6 (b) is to require that a ma p identifying the non-certified and/or non-agricultural product areas of the certifie d farmers' market be included in the operator application . Amending CCR, Section 1392 .6 (f) requires that the certified farmers' market rules and regulations include a provision regarding due process . Section 1392 .9 lists the compliance requirements for the certified farmers' marke t operator . Amending Section 1392 .9 (b) (1) of the CCR is to require the operator o f certified farmers markets to keep records of processed products as they currently do fo r fresh products . Creating CCR 1392 .9 (g) will stipulate that the market operator shal l provide due process to market participants prior to the imposition of a fine, and furthe r outlines the due process requirements . 2 The specific purpose of adding Section 1392 .11 (e) to the CCR is to include denial o f due process as a reason to appeal to the Director for a hearing . DISCLOSURES REGARDING THE PROPOSED ACTIO N The Department has made the following initial determinations : Mandate on local agencies and school districts : None . Cost or savings to any state agency : None . Cost to any local agency or school district which must be reimbursed in accordance wit h Government Code Sections 17500 through 17630 : None . Other nondiscretionary cost or saving imposed on local agencies : None . Cost or savings in federal funding to the state : None . Significant, statewide adverse economic impact directly affecting business including th e ability of California businesses to compete with businesses in other states : None . Cost impacts on a representative private person or business : The Department is no t aware of any significant cost impacts that a representative private person or busines s would necessarily incur in reasonable compliance with the proposed action : Adoption of these regulations will not : 1.Create or eliminate jobs within California ; 2.Create new businesses or eliminate existing businesses within California ; o r 3.Affect the expansion of businesses currently doing business within California . Significant effect on housing costs : None . EFFECT ON SMALL BUSINES S The Department has initially determined that the proposed changes to the regulation s would result in no added costs to small businesses affected by these propose d changes . The proposed changes allow the certified producers increased flexibility i n marketing their commodities and will increase the variety of products offered for sale a t certified farmers markets . CONSIDERATION OF ALTERNATIVE S The Department has initially determined that no reasonable alternative considered b y the Department, or that has otherwise been identified and brought to the attention of th e Department, would be more effective in carrying out the purpose for which thes e 3 regulations are proposed, or would be as effective and less burdensome to affecte d private persons than the proposed regulations . CONTACT PERSON S Inquiries concerning the proposed administrative action may be directed to : Rick S . Jensen, Chie f Inspection and Compliance Branc h California Department of Food and Agricultur e 1220 N Street, Sacramento, CA 9581 4 Telephone : (916) 445-2180 ; Fax : (916) 445-242 7 The backup contact person for these inquiries is : Susan Shelton, Staff Services Analys t Inspection and Compliance Branc h California Department of Food and Agricultur e 1220 N Street, Sacramento, CA 9581 4 Telephone : (916) 445-2180 ; Fax : (916) 445-242 7 Please direct requests for copies of the proposed text of the regulations, the initia l statement of reason, the modified text of the regulation, if any, or other information upo n which the rulemaking is based to Ms . Shelton at the above address . AVAILABILITY OF STATEMENT OF REASONS AND TEXT OF PROPOSE D REGULATION S The Department will have the rulemaking file available for inspection and copyin g throughout the rulemaking process at its office at 560 J Street, Sacramento, CA 95814 . As of the date this notice is published in the Notice Register, the rulemaking file consist s of this notice, the proposed text of the regulations, the initial statement of reasons, an d minutes to various Certified Farmers' Market Advisory Committee meetings . Copie s may be obtained by contacting Susan Shelton at the address or phone number liste d above . AVAILABILITY OF CHANGED OR MODIFIED TEX T After considering all timely and relevant comments received, the Department may adop t the proposed regulations substantially as described in this notice . If the Departmen t makes modifications which are sufficiently related to the originally proposed text, it wil l make the modified text (with the changes clearly indicated) available to the public for a t least 15 days before the Department adopts the regulations as revised . Please sen d requests for copies of any modified regulations to the attention of Susan Shelton at th e address indicated above . The Department will accept written comments on th e modified regulations for 15 days after the date on which they are made available . 4 AVAILABILITY OF FINAL STATEMENT OF REASON S Upon its completion, copies of the Final Statement of Reasons may be obtained b y contacting Ms . Shelton at the above address . AVAILABILTY OF DOCUMENTS ON THE INTERNE T Copies of the Notice of Proposed Action, the Initial Statement of Reasons, and the tex t of the regulations in underline and strikeout can be accessed through our website at : www .cdfa .ca .qov/is/requlation .ht m DEPARTMENT OF FOOD AND AGRICULTUR E Date Valerie Brown, Deputy Secretary 5 DEPARTMENT OF FOOD AND AGRICULTUR E PROPOSED CHANGES IN THE REGULATION S Title 3 . California Code of Regulation s Article 6 .5 Direct Marketin g Amend Section 1392 to read : Section 1392 . Intent . It is the intent of this article to encourage a productive and profitable agriculture i n California, as directed by state aqricultural policy (California Food and Agriculture Code , Division 1, Chapter 6, Article 2, Section 821),b y facilitatinq the sale of agricultural products from producers and certified producers withi n the state directly to consumers while maintaining sufficient regulatory control to ensur e that the agricultural products are of acceptable quality and that the selling activities ar e conducted honestly and fairly . Note : Authority cited : Sections 14, 407, 42682, 42684, 58101, 58101 .5, 58102, 5810 3 and 58104, Food and Agricultural Code . Reference : Sections 821,42941, 58101 , 58101 .5, 58102, 58103, and 58104, Food and Agricultural Code . Amend Section 1392 .2 to read : Section 1392 .2 . Definitions . Unless the context otherwise requires, the following definitions govern th e construction of the language in this article . (a)Certified Farmers' Market . A location approved by the county agricultura l commissioner of that county where agricultural products are sold by producers o r certified producers directly to consumers . A certified farmers market may onlyb e operated by one or more certified producers, by a nonprofit organization, or by a loca l government agency . (b)Certified Farmers' Market Certificate . A certificate issued by the count y agricultural commissioner authorizing the location where agricultural products are sol d by the producers directly to consumers . The certificate is valid only when bearing th e original signatures of the county agricultural commissioner and the authorized representative of the certified farmers' market .Upon receipt of a certified farmers ' market certificate, an operator shall assume and retain responsibility for all aspects o f the operation of a certified farmers' market at the location specified, includinq, but no t limited to, legal, financial and regulatory compliance requirements . (u) Processed Agricultural Products . Processed agricultural products shall b e 6 defined as agricultural products that have been altered or prepared by such means as , but not limited to, slicing, juicing, drying, shelling, smoking, freezing or cooking , provided, however, that the seller has produced all of the ingredients contained in th e final product . The only exceptions to this production requirement shall be the inclusio n of food coloring, pectin, rennin/rennet or ingredients used as preservatives, seasonings , and flavorings . (v)Preservative . An additive, substance or ingredient(s) added to agricultura l products to prevent decomposition due to chemical change or microbial action and/or t o protect against decay, discoloration or spoilage . Preservatives include, but are no t limited to : sulfites added to dried fruits, dried vegetables or wine ; sugar added in th e making of jams, jellies and preserves ; salt or salt brine solution for curing olives ; or vinegar for pickling of products such as, but not limited to, beans, asparagus an d cucumbers . (w)Seasoning . Seasoning shall be defined as salt or spice used in foo d preparation . (1) Spice . Spice shall be defined as any of various aromatic plant products use d in food preparation . Spices include, but are not limited to : chili powder, whole or groun d black pepper, ginger, garlic, onion, ialapeno, cinnamon and nutmeg . (x)Flavoring . A substance, additive or ingredient, which may itself includ e seasonings or preservatives, that imparts flavor to a food without changing th e consistency of or rendering unidentifiable the original product . Flavorings include, bu t are not limited to : liquid, powder or natural smoke, hickory, vanilla extract, nut oil, an d soy sauce . (y)Food Coloring . For the purposes of this regulation, food colorinq shall b e defined as a dye or pigment that is added to a product to impart color . Note : Authority cited : Sections 407, 42681, 42684, 47000, 47001, 47002, 47003 an d 47004, Food and Agricultural Code . Reference : Sections 42941, 47000, 47001 an d 47003, Food and Agricultural Code . Amend Section 1392 .4 to read : Section 1392 .4 . Conditions of Direct Marketing . (d) The certified producer's valid embossed photocopy certificate shal l accompany the certified agricultural products during transportation and shall b e conspicuously posted at the point of sale . (k) A seller of processed agricultural products shall document compliance wit h the production requirements referenced in Section 1392 .2(k) with documents such a s but not limited to a health department certificate for the processing facility, writte n agreement or bill for rent from a certified kitchen, or a written agreement or bill for wor k accomplished from a person or entity that processed the product . He or she shall hav e a co py of the documentation in his or her possession at the point of sale, and shal l make this documentation available upon request of an enforcing officer . The quantitie s 7 of certifiable agricultural product processed and sold shall not exceed the quantitie s listed on the seller's Certified Producer's Certificate . Additionally, the included ingredients not of own production, as defined in sectio n 1392 .2, other than sugar and water, must be the last items on the FDA legal label (i .e . where the ingredients are listed in descending order of quantity .) Note : Authority cited : Sections 407, 42682, 47000, 47001, 47002, 47003, 47004 an d 47005, Food and Agricultural Code . Reference : Sections 47000, 47002, 47003, 47004 , 47005 and 47022, Food and Agricultural Code . Amend Section 1392 .6 to read : Section 1392 .6 . Certification Requirements of a Certified Farmers' Market . (b) Application shall be made by the proposed operator(s) of a certified farmers ' market and shall include 1) a map that clearly locates and identifies the boundaries o f the certified, non-certified and/or non-agricultural product areas of the market, and 2)a signed agreement by the operator(s) to comply with the terms of this article . Th e application and certificate shall be on a form authorized by the director . (f) The certified farmers' market's rules and regulations shall contain _ a A clause, which states that the governing body and its designated agents shall implement and enforce all rules and regulations pertaining to th e operation of a certified farmers' market in a fair and equitable manner . gj A provision that sets forth the due process and appeal rights set forth in thes e regulations that a market participant shall receive prior to the imposition of a fine, suspension or expulsion from a certified farmers' market . Note : Authority cited : Sections 14, 407, 42681, 42682, 42684, 47000, 47002 1 and 47003,and 47004,Food and Agricultural Code . Reference : Section 42941, Food an d Agricultural Code . Amend Section 1392 .9 to read : Section 1392 .9 Direct Marketing, Compliance Requirements for the Operator of a Certified Farmers' Market . (b ) (1) The product list shall state the name of the certified producer, the identity o f each product sold as it appears on the certified producer's certificate, and th e quantity of each product sold at the market including all processed agricultura l products . 8 (e) The operator of a certified farmers' market shall provide reasonable du e process to certified farmers 'market participant prior to an imposition of a fine , suspension or expulsion from a certified farmers' market . A market participant shal l receive a written Notice of Intent to Take an Action if the action includes a fine , suspension or expulsion from the market . The Notice shall state the specific reasons fo r the proposed action . The Notice shall be delivered in person or mailed to the marke t participant prior to an imposition of a fine, suspension or expulsion from the marke t unless an immediate suspension is necessary to protect the public health, safety o r welfare . The Notice shall advise the participant that he or she has fifteen calendar day s to submit a written appeal of the proposed action . If an appeal is submitted in a timel y manner, the governing board or its designee shall arrange a date and time for th e appellant to appear before the governing board or its designee for an administrativ e hearing . The administrative hearing shall provide the participant with an opportunity t o present evidence and argument regarding the reasons stated in the proposed actio n and the appropriateness of the proposed action . The administrative hearing shall resul t in a written decision upholding, reversing or modifying the proposed action . Th e decision shall be issued within fifteen calendar days of the conclusion of the hearing . Note : Authority cited : Sections 407, 47000, 47002, 47003, 47004 and 47005, Food an d Agricultural Code . Reference : Sections 47000, 47002, 47003, 47004, 47005 and 47022 , Food and Agricultural Code . Amend Section 1392 .11 to read : Section 1392 .11 Appeals . fe) Denial of due process in the manner required by these regulations . Note : Authority cited : Sections 14, 407, 42681, 42682, 42684,47004 .1,58101 .5 an d 58104, Food and Agricultural Code . Reference : Sections 42941, 58101, 58101 .5 , 58102, 58103 and 58104, Food and Agricultural Code . 9 CALIFORNIA CODE OF REGULATIONS TITLE III, DIVISION 3, CHAPTER 1, SUBCHAPTER 4 , ARTICLE 6 .5, DIRECT MARKETIN G §1392 . Intent . The intent of this article is to facilitate the sale of agricultural products from producer s and certified producers within the state directly to consumers while maintaining sufficien t regulatory control to ensure that the agricultural products are of acceptable quality an d that the selling activities are conducted honestly and fairly . §1392 .1 . Direct Marketing Authorized . (a) Notwithstanding other provisions of this Group, this article authorizes producers o r certified producers of certified or noncertifiable agricultural products to sell thei r products, as defined in this article, directly to consumers, subject to the provisions of thi s article . (b) A certified producer may sell agricultural products, which he/she has produced, at a certified farmers' market . (c) A producer may only sell noncertifiable agricultural products which he/she ha s produced, at a certified farmers' market, or agricultural products which he/she ha s produced, at or near the point of production . (d) Fresh fruits, nuts, and vegetables may be sold directly to consumers exempt fro m size, standard pack, container, and labeling requirements only by : (1)The certified producer of the agricultural products at a stand at a certified farmers ' market ; o r (2)The producer of the agricultural products at a retail stand located at or near the poin t of production . (e) All fresh fruits, nuts, and vegetables sold pursuant to this article shall comply wit h the regulations of the California Code of Regulations, title 3, subchapter 4, beginnin g with section 1359, governing maturity and quality . (f) Excluding fresh fruits, nuts, and vegetables, agricultural products, as defined in thi s article, which are sold or offered for sale at a certified farmers' market or at or near th e point of production, must comply with all applicable laws and regulations pertaining t o quality and labeling . (g) This article does not supersede the provisions of federal marketing orders, stat e marketing orders, state laws and regulations enforced by any state agency, or any othe r local health and safety laws, regulations, or ordinances . §1392.2 . Definitions . Unless the context otherwise requires, the following definitions govern the constructio n of the language in this article . (a) Certified Farmers' Market . A location approved by the county agricultura l commissioner of that county where agricultural products are sold by producers o r certified producers directly to consumers . A certified farmers' market may be operated b y one or more certified producers, by a nonprofit organization, or by a local governmen t agency . (b) Certified Farmers' Market Certificate . A certificate issued by the county agricultural commissioner authorizing the location where agricultural products are sold by th e producers directly to consumers . The certificate is valid only when bearing the origina l signatures of the county agricultural commissioner and the authorized representative o f the certified farmers' market . (c) Land Which the Producer or Certified Producer Controls . Land that the producer o r certified producer farms and owns, rents, leases, or sharecrops . (d) Producer . A person or separate entity that produces agricultural products by practic e of the agricultural arts upon land which the person or separate entity controls . Producer may be, for the purposes of this article, a person, partnership, corporation or any othe r entity . (e) Certified Producer . A producer authorized by the county agricultural commissione r to sell certified agricultural products, produced by practice of the agricultural arts upo n land which the certified producer controls, directly to consumers at a certified farmers ' market. (f) Certified Producer's Certificate . A certificate issued by the county agricultura l commissioner in the county of production authorizing the transportation and sale o f certified agricultural products pursuant to this article . (g) Consumer . A person who purchases and receives agricultural products at or near th e point of production or at a certified farmers' market . It excludes a person who purchase s fresh fruits, nuts, and vegetables for commercial resale unless such products comply wit h all applicable size, standard pack, containers, and labeling requirements . (h) Direct Marketing . The sale : (1)At a certified farmers' market of agricultural products by a certified producer to a consumer ; o r (2)At a certified farmers' market of noncertifiable agricultural products by a producer t o a consumer ; or (3)At or near the point of production of agricultural products by a producer to a consumer . (i) Immediate Family . Parents, children, grandparents, or grandchildren of the certifie d producer or a family member regularly residing in the certified producer's household . (j) Employee . Any person employed by a certified producer at a regular salary or wage , on either a full or part time basis . It does not include any person who is reselling o r whose compensation is primarily based on a commission of sales . Notwithstanding the above, an employee of an agricultural cooperative organized unde r the laws of California may sell the agricultural products of one of its members i n accordance with the provisions of this article . (k) Agricultural Products . Agricultural products include all certified and noncertifiabl e agricultural products as defined in section 1392 .2(1) and section 1392 .2(m). (1) Certified Agricultural Products . Agricultural products, which are certified under th e jurisdiction of the county agricultural commissioner relative to inspection and verificatio n of compliance with the provisions of this article, include fresh fruits, nuts, vegetables , shell eggs, honey, flowers, and nursery stock . (m) Noncertifiable Agricultural Products . Noncertifiable agricultural products include all certified agricultural products that hav e been processed, those products other than certified agricultural products noted in (1) above from any tree, vine or plant and their flowers (including processed products), livestock (including rabbits) and livestock products, and fish and shellfish produce d under controlled conditions in waters or ponds located in California . (n)Nonprofit Organization . An organization which qualifies for nonprofit status fo r California income tax purposes . (o)Market Manager . A person or persons empowered to implement the rules , regulations, policies, and directives of the governing body of a certified farmers' market . (p)Market Rules . A set of written rules or regulations approved by each certifie d farmers' market . The rules and regulations may be more stringent than established stat e regulations, provided they do not violate or conflict with any state law or regulatio n governing their activities . (q)Notice and Hearing Process . A process initiated at the discretion of a count y agricultural commissioner after alleged violation(s) of the provisions of this article ha s occurred . (r)Agricultural Production and Practice of the Agricultural Arts . To be involved in an d make decisions regarding all phases of producing an agricultural product, which includes , but is not limited to, planting, growing, fertilizing, irrigating, cultivating, pest control , and harvesting . (s)Partnership . A partnership is a separate entity distinct from its individual members . As a separate entity, a partnership must obtain a certified producer's certificate to market , directly to consumers, its agricultural products, which shall be produced by practice o f the agricultural arts upon land that the partnership, as a separate entity, exclusivel y controls . §1392 .4 . Conditions of Direct Marketing . (a)Except as provided in subsection (0 below, producers or certified producers may sel l or offer to sell only agricultural products which they have produced to consumers at a certified farmers' market . The certified producer's immediate family or employee(s) ma y also act for and sell the certified producer's agricultural products . No certifiabl e agricultural products may be sold at a certified farmers' market unless such products ar e listed on the certified producer's certificate . (b)All agricultural products, when sold or offered for sale at a certified farmers' marke t or at or near the point of production, shall comply with all applicable requirements o f Article 1 (beginning with Section 113700), 2, 3, 4, 5, 6, 7, 11, 13, and 15 of Chapter 4 (California Uniform Retail Food Facilities Law), Division 104, Part 7, of the Californi a Health and Safety Code, and Chapters 1 (beginning with Section 109875), 2, 4, 5, and 8 (California Sherman Food, Drug, and Cosmetic Law), and Division 104, Part 5, of th e California Health and Safety Code . (c)Only agricultural products may be sold or offered for sale at a certified farmers ' market . The sale of nonagricultural products shall not be permitted in the area designate d as a certified farmers' market . (d)The certified producer's embossed photocopy certificate shall accompany th e certified agricultural products during transportation and shall be conspicuously posted a t the point of sale . (e)When any agricultural products are sold by weight, the type of scale used shall b e approved by the Department of Food and Agriculture, and shall be tested and sealed fo r use by the county sealer-director of weights and measures . (f)A certified farmers' market may allow, or prohibit, a certified producer or his/he r immediate family member or employee to sell at that market certified agricultura l products on behalf of a maximum of two other certified producers including, but no t limited to, separate entities, such as partnerships, in which the certified producer has a n interest as an individual member . If such a practice is allowed, the following provision s shall be met by the certified producer and shall be specified in the certified farmers ' market's rules and regulations : (1)A certified producer shall not represent, nor be represented by more than two othe r certified producers in a 12-month period . (2)Each certified producer's certified agricultural products to be sold or offered for sal e shall be separated and identifiable by each certified producer's valid certificate at th e point of sale . (3)The name of the certified producer for whom another certified producer is sellin g shall appear on the certificate of the certified producer that is conducting sales at a certified farmer's market. (4)The name of the certified producer who is selling the products of another certifie d producer shall appear on the certificate of the person or entity for whom the certifie d producer is selling . (5)The certified producer selling for another certified producer shall be selling o r offering for sale, at the same certified farmers' market on the same day, certifie d agricultural products which the certified producer conducting the sales has produced an d which are in greater volume than the volume offered for sale for the other certifie d producer. For purposes of this section, the volume shall be measured by the weight o r dollar value of the products at the time and point of sale . This volume requirement shal l apply only at the beginning of each day of sale . (6)The producer applying for certification shall obtain and submit to the agricultura l commissioner, prior to certification, written authority from said other certified producer s to sell on their behalf. (7)Commission sales and buying and selling between certified producers is prohibited . Any payment made for the service of one certified producer selling for another certifie d producer shall not be related to the volume or value of the products sold . (8)The operator of a certified farmers' market may prohibit or otherwise establish rule s regarding sales permitted under this subsection that are more restrictive, provided tha t such prohibition or restriction is contained in the market's written rules and regulations . (9)A certified producer who sells certified agricultural products on behalf of anothe r certified producer or whose products are sold by another certified producer at a certifie d farmers' market shall keep for a period of not less than three years, the following record s relating to such products : (i)Date of transfer to seller and accurate amount of products, by weight, dry measure, o r count, transferred . Each separate product and amount shall be recorded according t o variety . (ii)Date of sale and accurate amount of products, by weight, dry measure, or count , sold . Each separate product and amount shall be recorded according to variety . (iii) Names of both certified producers involved . (10) A certified producer subject to this subdivision shall produce, for inspection , records required by this section upon demand of a representative of the department o r county agricultural commissioner . (g) The provisions of this section, and any amendments thereof, shall apply to all ne w certified producer's certificates, including renewals, upon filing with the Secretary o f State, unless another effective date has been designated by the Office of Administrativ e Law . Certified producer's certificates already issued shall conform to the requirements o f this section, and any amendments, within twelve (12) months of the certificate issue date . §1392 .5. Producer Certification Procedures . (a) A producer may become certified by applying to the agricultural commissioner o f the county where the producer's farm is located . A producer who farms in more than on e county must be certified in each county where he/she produces certifiable agricultura l products for sale at a certified farmers' market . (b) The certificate and application shall be on a form authorized by the director an d include an agreement signed by the applicant that the applicant will comply with th e terms of this article . (c) Any producer shall provide, upon request by an enforcing officer or market manager , certificates, documentation, information, or any other identification that may b e reasonably required to show that the conditions of this article are being met . (d) The county agricultural commissioner shall issue only one original certificate, whic h bears the signatures of the agricultural commissioner and the certified producer, and th e name of each destination county where the certified producer will be selling . The original certificate shall be maintained in the issuing county agricultural commissioner's office . (e) The county agricultural commissioner shall issue an embossed photocopy of th e original certificate to the certified producer, which will serve as the valid certifie d producer's certificate. Certified producers who intend to sell at more than one certifie d farmers' market must obtain the necessary number of embossed photocopies of th e original certificate to comply with the provisions of this article . (f) The issuing county agricultural commissioner shall send a photocopy of the origina l certificate to each destination county listed on the certified producer's certificate . §1392 .6 . Certification Requirements of a Certified Farmers' Market . (a)A county agricultural commissioner may issue a certified farmers' market certificate , which specifies a location where agricultural products may be sold or offered for sale . The certificate shall indicate that the marketplace is a certified farmers' market . (b)Application shall be made by the proposed operator(s) of a certified farmers' marke t and shall include a signed agreement by the operator(s) to comply with the terms of thi s article . The application and certificate shall be on a form authorized by the director . (c)The county agricultural commissioner shall not issue a certificate for a certifie d farmers' market when notified that a permit for the operation of such market has been denied by an agency of local government . (d)The governing body of a certified farmers' market operation for or by more than on e certified producer shall promulgate a set of market rules and regulations which specif y procedural criteria pertaining to : (1)Admission of any producer to the market(s). (2)Admission of any agricultural products to the market(s). (3)Removal of any producer from the market(s). (4)Allowance of a certified producer selling on behalf of another certified producer a s ptovided in Section 1392 .4 . (e) The governing body of a certified farmers' market has authority to establish specifi c rules and regulations for any market(s) under its control which regulate the : (1)Type and number of producers and certified producers admitted . (2)Type and number of certified and noncertifiable products admitted . (3)Methods of selling certified and noncertifiable agricultural products . (f) The certified farmers' market's rules and regulations shall contain a clause, whic h states that the governing body and its designated agents shall implement and enforce al l rules and regulations pertaining to the operation of a certified farmers' market in a fai r and equitable manner . (g) A current copy of the certified farmers' market's rules and regulations shall be sent t o the Department of Food and Agriculture, Fruit and Vegetable Quality Control-- Standardization, and to the agricultural commissioner of the county in which the certifie d farmers' market is located . §1392 .7 . Certificates Issued . (a) A county agricultural commissioner shall issue a certified producer's certificate upo n review of application and determination that the applicant meets the requirements of a certified producer . When issuing the certified producer's certificate, the count y agricultural commissioner should : (1)Consider seasonal production and varieties of the products when listing the products . (2)Insofar as practicable, include an on-site inspection of the land controlled by th e producer . (b) A county agricultural commissioner shall issue a certified farmers' market certificat e upon review of application and determination that the applicant meets the requirements t o operate a certified farmers' market . (c) A certified producer's certificate shall be valid for not more than 12 months from th e date of issue . (d) A certified farmers' market certificate shall be valid for 12 months from the date o f issue . §1392 .8 . Fees . The county agricultural commissioner may charge a fee for issuing, modifying , verifying, or renewing any certificate, including embossed photocopies, as set by th e board of supervisors of that county . §1392 .8.1 . Certified Farmers' Market Fees . (1) Every operator of every certified farmers' market shall remit to the Department o f Food and Agriculture sixty cents ($0 .60) for each certified producer represented by eac h certified producer's certificate and other agricultural producers participating in th e market(s) on each market day for the entire quarter . The fee shall be submitted within 3 0 days after the end of each quarter with a form containing the following information : (a)Name of market sponso r (b)Market certificate numbe r (c)Name and address of the marke t (d)Name of market contact person (e)Market day(s) and hours of operatio n (f)Telephone number and fax number through which the market representative can b e reached during normal work hours . (g)Quarterly period for which the report is submitted . (h)Total number of certified producer certificates and other agricultural producer s participating on each market day of the entire quarter . (i)Amount of fees submitted . (j)Signature of authorized market representative . (2) Any operator who fails to pay the required fee within thirty (30) days after the end o f the quarter in which it is due shall pay a late monthly interest penalty of one and one hal f (1 1/2) percent monthly amount on the unpaid balance . §1392 .9 . Direct Marketing, Compliance Requirements for the Operator of a Certified Farmers' Market . (a) The operator of a certified farmers' market shall ensure that each person participatin g in the sale of agricultural products in the area designated as a certified farmers' market : (1)Is a producer, certified producer, or their immediate family member or employee . (2)Sells only certified and noncertifiable agricultural products . (3)Has in their possession, in the case of certifiable agricultural products, a vali d certificate that is posted at the point of sale . (4)Has each certifiable agricultural product in their possession listed on the certifie d producer's certificate . (5)Who sells noncertifiable agricultural products sells only those products which wer e produced in accordance with the certified farmers' market's rules and regulations . (6)Who represents another certified producer under an additional certificate, separate s and identifies the items listed on each respective certificate, and that the name of th e certified producer they are selling for appears on both of the certificates . (b) The operator of a certified farmers' market shall obtain from each perso n participating in the sale of agricultural products in the area designated as a certifie d farmers' market an itemized list of all products sold at the certified farmers' market eac h market day . (1)The product list shall state the name of the certified producer, the identity of eac h product sold as it appears on the certified producer's certificate, and the quantity of eac h product sold at the market . (2)The market operator shall keep the list of products sold for a period of not less tha n eighteen months . §1392 .9 .1 . Direct Marketing . Requirements for Partnerships, Sharecroppin g Agreements, and Similar Contractual Agreements . (a) Every person or entity that enters into a partnership as defined in Section 1392 .2(s), sharecropping, or similar contractual agreement with another person(s) or entity and tha t applies for a certified producer's certificate under such agreement shall provide the issuing agricultural commissioner, at the time of application, with proof of partnership a s defined in the United States and California Tax Codes, or the Partnership's Federal Ta x Identification Number and a copy of their current written agreement which shall contai n the following : (1)A clear, concise and accurate description of the property to be farmed . Th e description shall include the present use of the property, the dimensions, and the locatio n of the property ; an d (2)Partners shall demonstrate equitable risk by submitting a description of each party's financial and material resource input, which shall include the degree of involvement eac h party has in agricultural production ; and (3)The date of the agreement and the signatures of all parties involved ; and (4)A guarantee of the signatures on the agreement by a notary public executed at th e time of signing by all parties . The notarized signatures on the agreement of all partie s executing the agreement . (5)A statement of verification that the property or properties to be farmed by th e partnership or producers cooperating under a similar contractual agreement are under th e exclusive control of the partnership as a separate entity from its individual members . (b) Notwithstanding the above, an enforcing officer representing the Department o r agricultural commissioner may request such additional documentation as is reasonabl y necessary to show that the conditions of this article are being met . (c) To qualify for a certified producer's certificate, all parties listed on the certificat e shall : (1)Have entered into the agreement prior to planting of annual and biannual crops ; and (2)Have entered into the agreement prior to or within 30 days after preparing perennia l field crops for the subsequent cropping pattern (e .g., prior to the fern stage of asparagu s or prior to cut back of artichokes); and (3)Have entered into the agreement prior to bloom of free and vine crops ; an d (4)Be engaged in agricultural production upon the land which is the subject of th e agreement . (d) Any change in the terms of this agreement shall invalidate a certified producer's certificate issued under such terms . Any such change shall be reported immediately an d all embossed copies of certificates issued to the partnership shall be surrendered to th e issuing agricultural commissioner . §1392 .9 .2 . Direct Marketing . Requirements for Farm Leases . (a) Every person or entity who enters into a farm lease with another person(s) or entit y and who applies for a certified producer's certificate under such agreement shall provid e the issuing agricultural commissioner, at the time of application, with a copy of th e current written lease agreement which shall contain the following : (1) A clear and concise accurate description of the leased property . The description shall include the present use of the property, the dimensions of the leased property and th e location ; and (2)The purchase price (cost) of the lease ; and (3)The date of the agreement and the signatures of all parties involved ; and (4) A guarantee of the signatures on the agreement by a notary public executed at th e time of signing by all parties . The notarized signatures on the agreement of all executin g the agreement . (b) Notwithstanding the above, an enforcing officer representing the Department o r agricultural commissioner may request such additional documentation as is reasonabl y necessary to show that the conditions of this article are being met . (c) To qualify for a certified producer's certificate, the person applying for the certificate shall : (1)Assume all financial risks associated with producing agricultural products ; and (2)Enter into the agreement prior to planting of annual and biannual crops ; and (3)Enter into the agreement prior to or within 30 days after preparing perennial fiel d crops for the subsequent cropping pattern (e .g ., prior to the fern stage of asparagus or price to cut back of artichokes), an d (4)Enter into the agreement prior to bloom of tree and vine crops, an d (5)Perform agricultural production upon the land which is the subject of the agreement . (d) Any change in the terms of this agreement shall invalidate a certified producer's certificate issued under such terms . Any such change shall be reported immediately an d all embossed copies of certificates issued to the partnership shall be surrendered to th e issuing agricultural commissioner . §1392 .10 . Penalties . (a) Any county agricultural commissioner may, at any time, initiate a notice and hearin g process to determine whether a violation of these provisions has occurred . The hearing process may review the actions of: (1)The certificate holder ; o r (2)A family member, employee, or another certified producer acting on behalf of th e certificate holder; o r (3)Any other person whose actions may have resulted in the violation . (b) The notice of hearing shall be on a form approved by the director and contain : (1)Specific provisions violated ; and (2)A warning to cease such violations ; and (3)A hearing date to determine if the certificate(s) involved in the violations o r participation privileges should be revoked . (c) The county agricultural commissioner, upon determination that a violation has bee n made in accordance with (a), above, may : (1)Suspend and/or refuse, for a period of up to 18 months, to issue a certificate to th e violator ; and/or (2)Suspend, for a period of up to 18 months, the privilege of participation, under th e provisions of this article, of any person whose action resulted in the violation . §1392 .11 . Appeals . Any person may appeal to the director for a hearing if aggrieved by any one of th e following actions or decisions : (a)Denial of any certificate . (b)Suspension of any certificate . (c)Suspension of participation privileges . (d)Adoption of more stringent rules or regulations pertaining to the operation o f certified farmers' markets . In all cases, the appeal must be submitted to the director in writing within 30 days of th e date the action or decision was made . The director's proceeding shall, insofar as practicable, comply with the provisions of th e Administrative Procedure Act (Government Code, Section 11500, et seq .), except that a department hearing officer may be used . §1392 .12 . Emergency Declaration . (a)The director may, on an as needed, case by case basis, waive or modify specifi c restrictions within this Article on the direct marketing of agricultural products, including , but not limited to, restrictions or limitations on production acreage and commodities, a s well as certification requirements, if a declared plant, pest or animal quarantine,a declared natural disaster or a declared catastrophic emergency interferes with the norma l operative effect of the rules . (b)Any waivers or modifications shall be consistent with any quarantine, and th e response to any natural disaster or catastrophic emergency . (c)Prior to the utilization of any waivers or modifications, certified producers an d certified farmers' markets shall enter into compliance agreements with Californi a Department of Agriculture through the county agricultural commissioner in the county i n which their certificates have been issued . Page 1 of 1 The actual regulations are found in the CA Code of Regulations, Title 3 . Food an d Agriculture, Division 3 . Economics, Chapter 1 . Fruit and Vegetable Standardization, Subchapter 4 . Fresh Fruits, Nuts, and Vegetables, Article 6 .5 . Direct Marketing . The Code specifically states : § 1392 . Intent . The intent of this article is to facilitate the sale of agricultural products from producer s and certified producers within the state directly to consumers while maintaining sufficient regulator y control to ensure that the agricultural products are of acceptable quality and that the selling activities ar e conducted honestly and fairly . file ://C :\Documents and Settings\schippen\Local Settings\Temporary Internet Files\OLK9B\... 2/1/2010 Page 1 of 1 Updates to this code occur on a frequent basis . The following reference is typical . file ://C :\Documents and Settings\schippen\Local Settings\Temporary Internet Files\OLK9B\... 2/1/2010 Page 1 of 1 3)An argument for giving SLOFMA the responsibility for maintaining a Certified Farmers' Market i n San Luis Obispo on Thursday evenings . SLOFMA has been functioning effectively in San Luis Obispo County for 27 years . I am not aware of an y significant oversights or management errors . They have been constantly aware of CA laws and rul e changes over this long period of time . SLOFMA has provided a good selection of farmers and a large selection of flowers, fruits, an d vegetables . We know and trust many of the farmers because they live in our area and are part of ou r community . SLOFMA has many contacts with other state farmers' market organizations and advertising agreements already in place on the web . The local media has give SLOFMA many outstanding endorsements . SLOFMA is a mutual benefit, not-for-profit corporation. Its members are farmers who participate in on e or more of our markets . One of the responsibilities of the members is to elect the seven-member boar d of directors . Each director is also a farmer who serves a three-year term of office . The board establishe s policies, and gives direction to the SLOFMA staff on how the market should run, evolve and grow . Small farmers typically operate on a very small profit margin! Some of the SLO vendors gro w vegetables on back yard property and provide us with ripe fresh organic products . I fear that if the SL O Certified Farmers' Market becomes more profit motivated, small farmers will become discouraged an d simply quit providing fresh food . The market would be left with larger "efficient" farmers, locate d further from SLO, who would not provide flowers, fruit, and vegetables as fresh as we are accustome d to getting . 4)Proposed ways to address changes in the farmer's market that may be necessary from time to time . To facilitate effective changes in the farmers' market, I would suggest that each organization appoint a representative to the other organization's Board meetings . I would also suggest that the managers of th e two organizations and the City Manager hold regular conversations . file ://C :\Documents and Settings\schippen\Local Settings\Temporary Internet Files\OLK9B\... 2/1/2010