California Food and Agricultural Code - Division 4: Plant Quarantine and Pest Control - Part 1: Generally - Chapter 6: Abatement, Generally (secs. 5401 - 5494)

1 FOOD AND AGRICULTURAL CODE - FAC DIVISION 4. PLANT QUARANTINE AND PEST CONTROL [5001 - 8808] ( Division 4 enacted by Stats. 1967, Ch. 15. ) PART 1. GENERALLY [5001 - 6299] ( Part 1 enacted by Stats. 1967, Ch. 15. ) CHAPTER 6. Abatement, Generally [5401 - 5494] ( Chapter 6 enacted by Stats. 1967, Ch. 15. ) ARTICLE 1. Authority [5401 - 5405] ( Article 1 enacted by Stats. 1967, Ch. 15. ) 5401. Any premises, plants, conveyances or things which are infected or infested with any pest, or premises where any pest is found, are a public nuisance, and shall be prosecuted as such in all actions and proceedings. All remedies which are given by law for the prevention and abatement of a nuisance apply to such a public nuisance. (Enacted by Stats. 1967, Ch. 15.) 5402. It is unlawful for any person to maintain such a public nuisance. The remedies which are provided by this article are in addition to any other remedy by way of abatement which is provided in this division. (Enacted by Stats. 1967, Ch. 15.) 5403. If, after service of notice pursuant to this chapter a public nuisance is not abated within the time which is specified in the notice, the commissioner shall abate the nuisance by eradicating, controlling, or destroying the pest. (Enacted by Stats. 1967, Ch. 15.) 5404. (a) If, after service of the notice pursuant to this chapter, the commissioner determines that the nuisance constitutes an immediate hazard to adjoining or nearby property, and that great or irreparable injury would result from delay until expiration of the time required by law for constructive notice, he or she may forthwith abate the nuisance by eradicating, controlling, or destroying the pest. (b) For purposes of this section, cotton, which is being produced in violation of a host-free period declared pursuant to Article 5 (commencing with Section 5781) of Chapter 8 of this part, is a nuisance. (c) The commissioner shall take summary abatement action against any cotton found in violation of a planting date established as part of a host-free period. The person producing the cotton shall be given not more than 48 hours to commence javascript:submitCodesValues('5401.','5.1.7.1','1967','15','',%20'id 382e665f-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5402.','5.1.7.1','1967','15','',%20'id 382e6661-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5403.','5.1.7.1','1967','15','',%20'id 382e6663-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5404.','5.1.7.1','1984','995','1',%20'id 3832fa45-291f-11d9-9fa8-93d6a7ed919f') 2 abatement of the nuisance and shall be given not more than five days to complete abatement. (d) If the person producing the cotton fails to commence and complete abatement within the time specified by the commissioner pursuant to subdivision (c), the commissioner shall abate the nuisance by disking to a depth of six inches. The person who produced the cotton shall pay 150% of all costs associated with the commissioner’s abatement of the nuisance. (e) The commissioner may request that the district attorney assist him or her in expediting summary abatements pursuant to this section. (Amended by Stats. 1984, Ch. 995, Sec. 1. Effective September 11, 1984.) 5405. The board of supervisors of any county may authorize the commissioner to contract with any state or federal agency, public corporation for municipal purposes, or person that owns, controls, or administers within the county any property or premises which are infected or infested with any pest, to eradicate, destroy, or control it on such property or premises. The contract shall not impose any cost or obligation on the county, unless the imposition of the cost or obligation upon the county is authorized by the board of supervisors. (Enacted by Stats. 1967, Ch. 15.) ARTICLE 2. Notice and Expense of Abatement Generally [5421 - 5436] ( Article 2 enacted by Stats. 1967, Ch. 15. ) 5421. If the commissioner finds, after inspection, that any premises, plant, conveyance, or thing in his jurisdiction is infected or infested with any pest, he may in writing notify the record owner or person in charge or possession of the premises, plant, conveyance, or thing, that it is infected or infested with a pest. He may, to his satisfaction, require the person to eradicate, destroy, or control, the pest within the time which is specified in the notice. (Enacted by Stats. 1967, Ch. 15.) 5422. The notice may be served upon the record owner or person having charge or possession of the premises, plant, conveyance, or thing infected or infested with the pest or upon the agent of either, in the same manner as a summons in a civil action if such persons can be found within the county. (Enacted by Stats. 1967, Ch. 15.) javascript:submitCodesValues('5405.','5.1.7.1','1967','15','',%20'id 3832fa47-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5421.','5.1.7.2','1967','15','',%20'id 3832fa4b-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5422.','5.1.7.2','1967','15','',%20'id 3832fa4d-291f-11d9-9fa8-93d6a7ed919f') 3 5423. If no person upon whom service may be had, can, after diligent search be found within the county, the notice may be served by posting copies of it in three conspicuous places upon the infected or infested property or premises, and by mailing a copy of it to the owner at his last known address. (Enacted by Stats. 1967, Ch. 15.) 5424. If the address of the owner is not known, and cannot be ascertained by the exercise of reasonable diligence, a copy of the notice shall be mailed to him at the county seat of the county in which the property is situated. (Enacted by Stats. 1967, Ch. 15.) 5425. The commissioner may record a copy of any notice that is served and may mail a copy of the notice to the person that appears of record to be the owner of any encumbrance on the property, at his last known address. (Enacted by Stats. 1967, Ch. 15.) 5426. If the address of the encumbrancer is unknown to the commissioner, he shall state in the copy of the notice that the address is unknown to him and shall mail the copy, addressed to the encumbrancer at the county seat of the county in which the property is situated. (Enacted by Stats. 1967, Ch. 15.) 5427. If the eradication, control, or destruction of the pest is undertaken by the commissioner pursuant to Section 5403, the notice shall be recorded. (Enacted by Stats. 1967, Ch. 15.) 5428. The recorded notice is, from the date of recording, a lien against the property which is described in the notice for the expense that is incurred by the county subsequent to the recordation of the notice in the abatement of the nuisance. (Enacted by Stats. 1967, Ch. 15.) javascript:submitCodesValues('5423.','5.1.7.2','1967','15','',%20'id 383480ef-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5424.','5.1.7.2','1967','15','',%20'id 383480f1-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5425.','5.1.7.2','1967','15','',%20'id 383480f3-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5426.','5.1.7.2','1967','15','',%20'id 383480f5-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5427.','5.1.7.2','1967','15','',%20'id 38378d37-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5428.','5.1.7.2','1967','15','',%20'id 38378d39-291f-11d9-9fa8-93d6a7ed919f') 4 5429. The expense of the abatement by the commissioner is a county charge which is payable out of county funds. (Enacted by Stats. 1967, Ch. 15.) 5430. If the notice to abate is recorded before the commissioner incurs the expense of abatement, the amount which is incurred or expended by the county in the abatement is a lien on the land against which the expense is chargeable. In a case pursuant to Section 5494, the total expense shall be prorated and chargeable against each parcel of land in proportion to the acreage of such parcel which is served by water from the canal or ditch that is involved. (Enacted by Stats. 1967, Ch. 15.) 5431. A notice which sets forth the amount expended shall be recorded within 30 days after the date of payment of the last item of expense of the abatement by the county. The amount is a lien from the date of the recording of the notice of abatement pursuant to Section 5427. (Enacted by Stats. 1967, Ch. 15.) 5432. If a copy of the notice to abate a public nuisance, as described in Section 5401, is recorded and a copy is served upon or mailed to the holder of any encumbrance of record pursuant to this article, the lien is superior to all encumbrances, existing and future, except liens for taxes and assessments. (Amended by Stats. 1990, Ch. 1491, Sec. 13.2.) 5433. If the sum which is secured by lien is not repaid to the county within 80 days from the recording of the amount of the lien, there shall be added to the sum a penalty of 15 percent. The penalty shall also be secured by the lien. (Enacted by Stats. 1967, Ch. 15.) 5434. Except as provided in Article 3 (commencing with Section 5461) of this chapter, the district attorney of the county which makes payment of the abatement expense shall, within 120 days after the notice which is required by Section 5431 is javascript:submitCodesValues('5429.','5.1.7.2','1967','15','',%20'id 38378d3b-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5430.','5.1.7.2','1967','15','',%20'id 383913dd-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5431.','5.1.7.2','1967','15','',%20'id 383913df-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5432.','5.1.7.2','1990','1491','13.2',%20'id 383913e1-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5433.','5.1.7.2','1967','15','',%20'id 383913e3-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5434.','5.1.7.2','1967','15','',%20'id 383913e5-291f-11d9-9fa8-93d6a7ed919f') 5 recorded, commence in the name and for the benefit of such county, an action to foreclose the lien. (Enacted by Stats. 1967, Ch. 15.) 5435. (a) If, after foreclosure, the property is sold, enough of the proceeds shall be paid into the treasury of the county which forecloses the lien as shall satisfy the lien, penalty, and costs. (b) If there is any surplus, it shall be paid to the owner of the property, if he is known. If the owner of the property is not known, the surplus shall be paid into the court for his use at such time as he is ascertained. (Enacted by Stats. 1967, Ch. 15.) 5436. If no action to foreclose is commenced within 120 days subsequent to the recordation of the notice which is required by Section 5431, the lien ceases to exist. (Enacted by Stats. 1967, Ch. 15.) ARTICLE 3. Notice and Expense of Abatement on Tax-Deeded Property [5461 - 5464] ( Article 3 enacted by Stats. 1967, Ch. 15. ) 5461. If any pest is found to exist upon any property which has been deeded to the state for nonpayment of taxes, the notice of abatement shall be served by recording and mailing a copy of the notice to the State Controller, and either by personally serving or by mailing a copy of it, in the manner provided in Sections 5425 to 5428, inclusive, to the last owner of record prior to the deeding of the property to the state. (Enacted by Stats. 1967, Ch. 15.) 5462. If the expense of abatement becomes a lien on such property, as provided in Sections 5429 to 5432, inclusive, and the property is redeemed or sold to a private person at a tax sale, the action to foreclose the lien shall be commenced within 120 days after the redemption or sale. (Enacted by Stats. 1967, Ch. 15.) 5463. If no action to foreclose is commenced within 120 days subsequent to the redemption or sale of the property, the lien ceases to exist. javascript:submitCodesValues('5435.','5.1.7.2','1967','15','',%20'id 383913e7-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5436.','5.1.7.2','1967','15','',%20'id 383913e9-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5461.','5.1.7.3','1967','15','',%20'id 383a9a8d-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5462.','5.1.7.3','1967','15','',%20'id 383a9a8f-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5463.','5.1.7.3','1967','15','',%20'id 383a9a91-291f-11d9-9fa8-93d6a7ed919f') 6 (Enacted by Stats. 1967, Ch. 15.) 5464. If the property is acquired by the state, or by any municipal corporation or political subdivision, and the right of redemption is terminated, the lien terminates at the time the right of redemption is terminated. (Enacted by Stats. 1967, Ch. 15.) ARTICLE 4. Notice and Expense of Abatement on Other Public Property [5491 - 5494] ( Article 4 enacted by Stats. 1967, Ch. 15. ) 5491. If any pest is found to exist in any public park or along any street, highway, or other property which is subject to the control of a city or county, the notice of abatement shall be served on the chairman of the governing body of the city or county. If the eradication, control, or destruction of the pest is performed by the commissioner, the cost of the eradication, control, or destruction is a city or county charge, as the case may be, and shall be paid from the general fund of the city or county. (Enacted by Stats. 1967, Ch. 15.) 5492. If any pest is found to exist in any park or along any street, highway, right-of-way, or other property which is subject to the control of any agency of the state, the director, upon receiving a report of the existence of the pest from the commissioner, shall notify the agency. He may instruct the commissioner to serve the notice upon the director or other executive officer of the agency. If the eradication, control, or destruction of the pest is performed by the commissioner, the cost of the eradication, control, or destruction is a charge against, and shall be paid from, the maintenance fund or from other funds for the support of the agency. This section applies to a state highway right-of-way if any pest of the same kind has been, or is being, subjected to control, destruction, or eradication on other private or public property in the immediate vicinity of the right-of-way, either at the direction of the commissioner or voluntarily by the owner of such adjacent property. (Enacted by Stats. 1967, Ch. 15.) 5493. If any pest is found to exist upon any property which is subject to the control of any irrigation, drainage, flood control, reclamation, or levee district, or other political subdivision of the state, the notice of abatement shall be served upon the chairman javascript:submitCodesValues('5464.','5.1.7.3','1967','15','',%20'id 383a9a93-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5491.','5.1.7.4','1967','15','',%20'id 383c2137-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5492.','5.1.7.4','1967','15','',%20'id 383c2139-291f-11d9-9fa8-93d6a7ed919f') javascript:submitCodesValues('5493.','5.1.7.4','1967','15','',%20'id 383c213b-291f-11d9-9fa8-93d6a7ed919f') 7 of the governing body of the district or political subdivision. If the chairman is absent from the county, or for any reason cannot be served, the notice shall be served upon some other member of the governing body. If the eradication, control, or destruction of the pests upon the property is performed by the commissioner, the cost of the eradication, control, or destruction is a legal charge and shall be paid from the general maintenance or operating fund, as the case may be, of the district or political subdivision. (Enacted by Stats. 1967, Ch. 15.) 5494. If any pest is found to exist in or on any irrigation canal or ditch, including its lateral banks, which is not subject to the control of any district or political subdivision of the state, the notice of abatement shall be served upon all users of water from the irrigation canal or ditch that is described in the notice. (Enacted by Stats. 1967, Ch. 15.) javascript:submitCodesValues('5494.','5.1.7.4','1967','15','',%20'id 383c213d-291f-11d9-9fa8-93d6a7ed919f')