CO Code § 35-28-116 (2021)
2021 Colorado Code|Title 35 - Agriculture|Article 28 - Marketing Act of 1939|§ 35-28-116. Administration and Enforcement

  The commissioner of agriculture shall be responsible for the administration and enforcement of this article.    [ ] Every person who violates any provision of this article or any provision of any marketing order duly issued by the commissioner under this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for not less than ten days nor more than six months, or by both such fine and imprisonment. Each day during which any such violations continue constitutes a separate offense.    Upon the filing of a verified complaint charging violation of any provisions of this article or of any provision of any marketing order issued by the commissioner under this article, and prior to the institution of any court proceeding authorized in this section, the commissioner in his discretion may refer the matter to the attorney general or any district attorney of this state for action pursuant to the provisions of this article or call a hearing to consider the charges set forth in such verified complaint. In such case, the commissioner shall cause a copy of such complaint, together with a notice of the time and place of hearing of such complaint, to be served personally, or by mail, upon the person named as respondent therein. Such service shall be made at least three days before said hearing date. The hearing shall be held in the city or town in which is situated the principal place of business of the respondent, or in which the violation complained of is alleged to have occurred, or in the nearest office of the department of agriculture, at the discretion of the commissioner. At the time and place designated for such hearing, the commissioner or his agents shall hear the parties to said complaint and shall enter in the office of the commissioner at Denver his findings based upon facts established at such hearing.    If the commissioner finds that no violation has occurred he shall forthwith dismiss such complaint and notify the parties to such complaint.    If the commissioner finds that a violation has occurred he shall so enter his findings and notify the parties to such complaint. Should the respondent thereafter fail, neglect, or refuse to desist from such violation, within the time specified by the commissioner, the commissioner may thereupon file a complaint against such respondent in a court of competent jurisdiction as set forth in this section.    Each district attorney of this state may upon his own initiative and shall upon any complaint of any person, if, after investigation he believes a violation has occurred, bring a criminal action in the proper court in his district in the name of the people of this state in any court of competent jurisdiction in the state of Colorado against any person violating any provision of this article or of any marketing order duly issued by the commissioner under this article.      Any person who violates any provision of this article or of any marketing order or rule adopted pursuant to this article is subject to a civil penalty as determined by a court of competent jurisdiction or by the commissioner. The penalty shall not exceed one thousand dollars per violation; except that such penalty may be doubled if it is determined, after notice and an opportunity for hearing, that the person has violated the provision, marketing order, or rule on at least one prior occasion occurring after March 23, 1995.    No civil penalty may be imposed by the commissioner unless the person charged is given notice and opportunity for a hearing pursuant to article 4 of title 24, C.R.S.    If the commissioner is unable to collect the civil penalty, or if any person fails to pay all or a set portion of the civil penalty as determined by the commissioner, the commissioner may bring suit to recover such amount plus costs and attorney fees by action in any court of competent jurisdiction.    Before imposing any civil penalty, the court or the commissioner may consider the effect of such penalty on the person charged.    All penalties collected pursuant to this section shall be transmitted to the general fund.         The commissioner shall enforce the provisions of this article.    Whenever the commissioner has reasonable cause to believe a violation of any provision of this article or any marketing order or rule issued pursuant to this article has occurred and immediate enforcement is deemed necessary, the commissioner may issue an order requiring any person to cease and desist from such violation. Such cease-and-desist order shall set forth the provisions alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all actions cease immediately. At any time after service of the order to cease and desist, the person may request a prompt hearing to determine whether or not such violation has occurred. Such hearing shall be conducted pursuant to the provisions of article 4 of title 24, C.R.S., and shall be determined promptly.    Whenever the commissioner possesses evidence satisfactory to the commissioner that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this article or of any marketing order or rule issued under this article, the commissioner may apply to a court of competent jurisdiction to temporarily or permanently restrain or enjoin the act or practice in question and to enforce compliance with this article or any marketing order, rule, or order under this article. In any such action, the commissioner shall not be required to plead or prove irreparable injury or the inadequacy of the remedy at law. Under no circumstances shall the court require the commissioner to post a bond.       The judgment, if in favor of the plaintiff, shall provide that the defendant pay to the plaintiff reasonable costs of such suit including attorney's fees incurred by an advisory board in the prosecution of such action.    Any such action may be commenced either in the county where defendant resides or where any act or omission or part thereof complained thereof occurred.    The penalties and remedies prescribed in this article with respect to any violation mentioned in this article shall be concurrent and alternative, and neither singly nor combined shall the same be exclusive and either singly or combined the same shall be cumulative with any other civil, criminal, or administrative rights, remedies, forfeitures, or penalties provided or allowed by law with respect to any such violation.    Any handler or processor located outside of this state who processes products which are marketed or distributed in this state on a continuing basis, whether directly or indirectly, shall be considered to be engaged in the transaction of business within this state and shall be subject to the jurisdiction of the courts of this state pursuant to the provisions of section 13-1-124, C.R.S. Any action to enforce any provision of this article or any marketing order issued pursuant to this article against such out-of-state handler or processor by the commissioner shall be considered to have arisen from the transaction of business in this state and shall subject the handler or processor to the jurisdiction of the courts of this state.    Editor's note: This version of subsection (2) is effective until March 1, 2022.  (2) [ ] Every person who violates any provision of this article 28 or any provision of any marketing order duly issued by the commissioner under this article 28 commits a petty offense. Each day during which any such violations continue constitutes a separate offense.  Editor's note: This version of subsection (2) is effective March 1, 2022.  History. Source: L. 39: P. 205, § 11. CSA: C. 106, § 56. CRS 53: § 7-3-16 . C.R.S. 1963: § 7-3-16 . L. 73: P. 200, § 1. L. 95: (7) and (8) amended, p. 65, § 1, effective March 23. L. 2004: (7)(a), (8)(b), and (8)(c) amended, p. 65, § 1, effective March 8. L. 2021: (2) amended,(SB 21-271), ch. 462, p. 3279, § 627, effective March 1, 2022.    Editor's note:    Section 2 of chapter 19, Session Laws of Colorado 2004, provides that the act amending subsections (7)(a), (8)(b), and (8)(c) applies to marketing orders issued before, on, or after March 8, 2004.    Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.     ANNOTATION   Option in initiating complaint proceedings. Under this section, the commissioner of agriculture has the option of initiating complaint proceedings in the administrative agency or in the district court. People ex rel. Commissioner of Agriculture v. Webster, 40 Colo. App. 144, 570 P.2d 560 (1977).   Once commissioner chooses to proceed in district court, the district court is clothed with exclusive jurisdiction to hear the entire matter. People ex rel. Commissioner of Agriculture v. Webster, 40 Colo. App. 144, 570 P.2d 560 (1977).   Assertion of affirmative defenses prior to exhaustion of administrative remedies. Where the commissioner elects to initiate the enforcement proceeding in the district court, the defendant can assert his affirmative defenses without first exhausting his administrative remedies. Clasby v. Klapper, 636 P.2d 682 (Colo. 1981).   Proper notice to defendant of action by commission, see Shoenberg Farms, Inc. v. People ex rel. Swisher, 166 Colo. 199 , 444 P.2d 277 (1968).   Applied in People ex rel. Orcutt v. District Court, 167 Colo. 162 , 445 P.2d 887 (1968).