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2010 Florida Statutes
Special marketing orders.
Special marketing orders.
—Whenever, upon its own motion or upon petition of any handler or producer or group or association of handlers or producers of citrus fruit, the commission, upon affirmative vote of nine of its members, determines:
That the conduct of a special advertising and promotional marketing campaign or the conduct of market and product research and development, in addition to the advertising campaign being conducted pursuant to s. 601.15 and the research being conducted pursuant to the other provisions of the Florida Citrus Code, may substantially further increase the consumer acceptance and consumption of, and strengthen the market for, any type, variety, or form of citrus fruit or processed citrus product by further increasing the number of families buying such citrus fruit or such processed citrus product or by further increasing the quantity of such citrus fruit or processed citrus product purchased by buying families; and
That such substantial further increase and strengthening may be of substantial benefit to handlers thereof, producers thereof, and to the economy and well-being of the state
the commission shall direct that a proposed marketing order be formulated for a special marketing campaign of advertising and sales promotion, including, but not limited to, brand advertising rebate promotions or the conduct of market and product research and development for such type, variety, or form of citrus fruit or processed citrus product, and shall designate a public hearing to consider adoption and implementation of such proposed marketing order.
Notice of the time, place, and purpose of such public hearing shall be:
Mailed, not less than 10 days prior to such hearing, to each handler who, during the 12 months immediately preceding such mailing, has first handled in the primary channel of trade in Florida the type, variety, and form of citrus fruit or citrus product specified in the proposed marketing order, and to each handler who the Department of Citrus has good cause to believe will, during the period of time covered by the proposed marketing order, first handle in the primary channel of trade in Florida the type, variety, and form of citrus fruit or processed citrus product specified in such proposed marketing order.
Published in the Florida Administrative Weekly not less than 10 days prior to such hearing.
A full and complete record of all proceedings at such public hearing shall be made and filed by the department at its offices, which record, when signed by the chair of the commission and authenticated by the seal of the department, shall constitute prima facie evidence of such proceedings in all courts of this state.
Copies of the proposed marketing order shall be made available to the public at the offices of the Department of Citrus at Lakeland at least 5 days prior to such hearing and shall be in sufficient detail to apprise all persons having an interest therein of the approximate amount of moneys proposed to be expended; the assessments to be levied thereunder; and the general details of the proposed marketing order for a special marketing campaign of advertising or sales promotion or market or product research and development. Among the details so specified shall be the period of time during which the assessment imposed pursuant to subsection (8) will be levied upon the privilege so assessed, which period may not be greater than 2 years. The order may, however, provide that the expenditure of the funds received from the imposition of such assessments shall not be so confined, but may be expended during such time or times as shall be specified in the proposed marketing order, which may be either during the shipping season immediately preceding the shipping seasons during which such assessments are imposed or during, or at any time subsequent to, the shipping seasons during which such assessments are imposed. Nothing herein shall be construed to prevent the imposition of a subsequent marketing order either before, during, or after the expenditure of funds collected pursuant to a previously imposed marketing order, provided the aggregate of the assessments imposed may not exceed the maximum permitted under subsection (8).
A proposed marketing order shall specify the type, variety, and form of citrus fruit or processed citrus product to be covered by the order and whether it applies:
To such citrus fruit or processed citrus product if it was so packed or processed from fruit first placed in the primary channel of trade in Florida during the period of time specified in the marketing order for the imposition of such assessments, or
To such citrus fruit or processed citrus product if it was so packed, processed, or shipped in such type, variety, and form during the period of time specified in the marketing order for the imposition of such assessments.
If a marketing order provides for a brand advertising rebate promotion, the details specified shall include the requirements which must be met by the handler, broker, distributor, or grower in order to be eligible for rebate of advertising or promotional expenditures; the amount, or a method for computing the amount, rebatable; and the procedure for making rebates.
Any marketing order may provide that policy decisions with respect to details not specifically set forth in such marketing order may be made either by the commission upon its own motion or by the commission upon the recommendation of any handlers’ committee that may be established by the order. Otherwise such policy decisions shall be made by the commission.
After such notice and hearing, the commission shall determine whether or not implementation of the new special marketing order, as originally proposed or as amended at the public hearing, will substantially further increase the consumer acceptance and consumption of the citrus fruit or processed citrus product specified in such marketing order and that such substantial further increase in the consumer acceptance and consumption thereof will be of substantial benefit to the handlers and producers thereof and to the economy and well-being of the state. If the commission so determines and if it adopts a marketing order, the commission shall direct that such marketing order be subjected to a referendum of the handlers who have, during a representative period to be selected by the commission, handled in the primary channel of trade in Florida the type, variety, and form of citrus fruit or processed citrus product specified in such marketing order.
No marketing order adopted pursuant to this section shall be effective unless and until the commission, at a public meeting, determines such marketing order to have been assented to by referendum by at least 67 percent of the handlers covered by the marketing order who, during the representative period determined by the commission, first handled in the primary channel of trade in Florida not less than 51 percent of the total volume of the type, variety, and form of citrus fruit or processed citrus product specified in the marketing order.
The Department of Citrus is authorized to prescribe such procedures as it deems necessary properly to conduct a referendum among handlers covered by the marketing order to determine whether such marketing order has been so assented to.
Any marketing order adopted pursuant to this section and subsequently approved by referendum as provided herein shall become effective 15 days after referendum approval is officially determined by the commission. Chapter 120 does not apply to this section. Any such marketing order shall be reviewable by any person adversely affected, by certiorari to the district courts of appeal in the manner prescribed by the Florida Rules of Appellate Procedure. The venue of the proceeding for such review shall be the appellate district which includes the county in which the hearings were conducted or, if the venue cannot be thus determined, the appellate district wherein the Department of Citrus executive offices are located.
In cases in which certiorari is granted pursuant to this section, the court may issue its mandate or order with directions to the agency to enter in the proceedings as is appropriate on the record, or the court may remand the cause for such further proceedings, including the taking of testimony, as may to the court seem necessary or proper:
To accord the parties due process of law;
To establish a sufficient record for review;
To accord the parties their constitutional, statutory, or procedural rights; or
To accomplish the purposes and objectives of the law pursuant to which the administrative proceeding was initiated.
Any marketing order so implemented under this section may be amended subsequent to its implementation, provided such amendment has been formulated, published, subjected to public hearing, determined by the commission to meet the requirements set forth in the other subsections hereof, and assented to in the same manner and in accordance with all of the procedures and requirements set forth in this section for implementation of the original marketing order. Any such amendment may:
Terminate, extend, accelerate, or defer the conduct of the campaign.
Defer for one or more shipping seasons the imposition of assessments thereunder.
Extend by not more than 2 additional years the period of time during which the assessments imposed pursuant to subsection (8) may be levied upon the privilege so assessed.
Increase (subject to the maximum limitations imposed herein) or reduce the assessments or the amount of moneys to be expended.
Alter the general details of the campaign.
Otherwise amend the originally implemented marketing order.
For the purpose of carrying out any and all provisions of this section, the department, or its duly authorized or designated representative or representatives, may hold hearings, take testimony, and administer oaths. Copies of the proceedings, records, and acts of the department and the handlers’ committee, if any, established by the marketing order and certificates purporting to relate the facts concerning such proceedings, records, and acts signed by the chair of the commission and authenticated by the seal of the department shall be prima facie evidence thereof in all the courts of the state.
Each person who, during the period of time specified in any marketing order implemented pursuant to this section, first handles in the primary channel of trade in Florida any citrus fruit or processed citrus product of the type, variety, and form specified in such marketing order shall, for the privilege of so handling such citrus fruit or such citrus product, pay to the Department of Citrus such assessments as are levied and imposed thereon by such marketing order, which funds shall be used by the Department of Citrus to defray the necessary expenses incurred in the formation, issuance, administration, and enforcement of such marketing order and in the conduct of the special marketing campaign or market and product research and development provided for in such marketing order. However, such assessments levied and imposed pursuant hereto shall be at a rate not to exceed 8 cents per standard-packed box on citrus fruits in fresh form, 1.3 cents per gallon on single strength citrus juices or sections, or 1.3 cents per pound of soluble citrus solids on concentrated citrus juices.
The Department of Citrus shall prescribe procedures for the assessment and collection of such funds to defray the necessary expenses incurred, or expected to be incurred, by the Department of Citrus in the formation, issuance, administration, and enforcement of any marketing order implemented pursuant to the provisions of this section.
Every handler shall, at such times as the department may require, file with the Department of Citrus a return, not under oath, on forms to be prescribed and furnished by the Department of Citrus, certified as true and correct, stating the quantity of the type, variety, and form of citrus fruit or citrus product specified in the marketing order first handled in the primary channels of trade in Florida by such handler during the period of time specified in the marketing order. Such returns shall contain any further information deemed by the Department of Citrus to be reasonably necessary to properly administer or enforce the provisions of this section or any marketing order implemented hereunder. Information that, if disclosed, would reveal a trade secret, as defined in s. 812.081, of any person subject to a marketing order is confidential and exempt from the provisions of s. 119.07(1).
All assessments imposed under and pursuant to the provisions of this section shall be due and payable and shall be paid by such handlers at such times and in such installments as the commission shall prescribe in such marketing order, or the amount thereof shall be provided for and guaranteed by giving a surety bond or cash deposit or as the Department of Citrus may otherwise prescribe.
All moneys collected by the Department of Citrus under this section shall be set aside in the Florida Citrus Advertising Trust Fund as a special fund to be known as the “Citrus Special Marketing Order Fund.” All moneys in such fund, after deducting the service charge provided in s. 601.15(7), are hereby appropriated to the Department of Citrus for the actual expenses incurred by the Department of Citrus with respect to the formulation, issuance, administration, and enforcement of any marketing order so implemented and in the conduct of the special marketing campaign or market and product research and development to be carried out pursuant to any such marketing order so implemented. Upon the completion of the special marketing campaign or market and product research and development provided for pursuant to any marketing order so implemented hereunder, any and all moneys remaining and not required by the Department of Citrus to defray the expenses of such marketing order shall be deposited to and made a part of the Florida Citrus Advertising Trust Fund created by s. 601.15.
If the Department of Citrus finds it necessary to do so, it may transfer to the Citrus Special Marketing Order Fund from any other portion of the Florida Citrus Advertising Trust Fund, including the Emergency Reserve Fund and any other special or reserve fund, such sum of money as the Department of Citrus determines is initially required to formulate, issue, administer, and enforce any such marketing order and conduct the special marketing campaign or market and product research and development to be carried out pursuant to such marketing order until moneys in the Citrus Special Marketing Order Fund derived from assessments imposed and collected pursuant to this section are sufficient for such purposes, and thereafter repay such advance out of the Citrus Special Marketing Order Fund.
Any handler who fails to file a return or to pay any assessment within the time required shall thereby forfeit to the Department of Citrus a penalty of 5 percent of the amount of assessment then due; but the Department of Citrus, upon good cause shown, may waive all or any part of such penalty. Such penalty shall be paid to the Department of Citrus and disposed of as provided with respect to moneys derived from the assessments imposed pursuant to this section.
The Department of Citrus may collect the assessments imposed pursuant to this section in either or all of the following methods:
The voluntary payment by the handler liable therefor;
By a suit at law;
By a suit in equity to enjoin and restrain any handler owing such assessments from operating his or her business or engaging in business as a citrus fruit dealer until the delinquent assessments are paid. Such action may include an accounting to determine the amount of assessments plus delinquencies due. In any such proceeding, it shall not be necessary to allege or prove that an adequate remedy at law does not exist.
This section shall be liberally construed to effectuate the purposes set forth and as additional and supplemental powers vested in the Department of Citrus under the police power of this state.
ss. 1, 3, ch. 61-87; s. 2, ch. 61-119; s. 1, ch. 63-81; s. 1, ch. 65-90; s. 1, ch. 67-85; s. 1, ch. 69-267; s. 22, ch. 71-186; s. 154, ch. 73-333; s. 1, ch. 76-9; s. 1, ch. 77-174; s. 10, ch. 78-95; s. 12, ch. 83-339; s. 11, ch. 92-4; s. 357, ch. 96-406; s. 1193, ch. 97-103.