H.P. 1110 - L.D. 1572
An Act To Amend the Potato Industry Licensing Laws
Emergency preamble. Whereas, acts of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, the licensing of potato dealers is vital to the potato industry; and
Whereas, revisions are needed to protect potato growers when contracting for the 2005 crop; and
Whereas, in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 7 MRSA §1015, as amended by PL 2003, c. 344, Pt. D, §1, is further amended to read:
§1015. Application and renewal for license
The applicant shall file an application for a license or renewal of a license on forms as prescribed and furnished by the commissioner, which must contain the full name of the person applying for the license and, if the applicant is a corporation, partnership, association, exchange or legal representative,
officer, director, partner or member of a corporation, partnership, association or exchange, all such names and positions. If the applicant is a foreign corporation, it shall certify that it is authorized to transact business in the State under former Title 13-A, chapter 12 or Title 13-C, chapter 15, and further state the principal business address of the applicant in the State or elsewhere, the address of all places of business in the State, and the name or names of the person or persons authorized to receive and accept service of lawful process upon the applicant within the State. All questions required to be answered in the application for licenses must be sworn to, and intentionally untruthful answers constitute the crime of perjury.
Upon receipt of
such applicationsan initial application, the commissioner immediately shall cause notice of the applicationsapplication to be provided in a manner consistent with the provisions of the Maine Administrative Procedure Act as to adjudicatory proceedings and shall, in any case, cause a copy of the notice to be served upon the Maine Potato Board. Any interested person has 30 days in which to file comments as to the applicant's qualifications, to request a hearing or to file a verified complaint with the commissioner as provided by this Article.
This applicant shall satisfy the commissioner of
histhat applicant's character, financial responsibility and good faith in seeking to engage in the business. The commissioner shall, after notice and opportunity for a hearing has been provided in a manner consistent with the Maine Administrative Procedure Act as to adjudicatory proceedings, issue a license to suchan applicant if hethe commissioner is satisfied as to the applicant's qualifications, such license entitling the applicant to act in the capacity described in the license for a period of one year from the date of issuance thereof. NoA license shallmay not be granted to any applicant if such person or officer, director, partner, or member thereof, has been convicted in any state or federal court of any felony within 5 years of the date of the application.
In order to insure the licensee's financial responsibility and to protect potato and rotation crop producers, the commissioner shall require the licensee to file a bond as a prerequisite to the issuance of a license. The bond must be in a form and amount satisfactory to the commissioner, but not less than $50,000 nor more than $300,000 in the case of dealers and brokers engaged in buying or selling either potatoes or rotation crops, but not both, not less than $50,000 nor more than $400,000 in the case of dealers and brokers engaged in buying and selling both potatoes and rotation crops, or not less than $100,000 nor more than $500,000 in the case of processors, payable to the
commissioner in the commissioner's official capacity and conditioned on the full and prompt payment for all potatoes or rotation crops received or purchased from producers or other licensees during the effective period of the license. In the case of processors, the amount of bond required must be based on the licensee's anticipated monthly volume of purchases, but may be adjusted to reflect other federal escrow accounts or bond requirements met by the licensee that satisfy the purposes of this section.
shallmust plainly state the name and business address or addresses of the licensee and shallmust be posted in a conspicuous place in each office where the business is transacted. The initialfee for each license shall be $80is $100 annually. Such license shallmay be automaticallyrenewed for successive periods of one year each upon payment of the renewal fee which shall be $80and the submission of an application demonstrating that the applicant continues to meet the requirements for licensing, including filing proof of financial responsibility. A license or license renewal issued expires on the 30th day of June following the date of issuance. The department is not required to provide notice and opportunity for a hearing as provided in the Maine Administrative Procedure Act when granting a license renewal. If the licensee desires to carry on business in more than one place within the State, hethe licensee shall procure additional copies of the license, certified by the commissioner, for each place where the business is to be conducted. The fee for each such additional certification shall be $80is $100. In the event a person required to be licensed under this section fails to renew that person's license or submit the annual proof of financial responsibility, the department shall promptly provide notice to members of the potato producing industry through the Maine Potato Board and an agricultural bargaining council.
All fees collected under this Article
shallmust be paid forthwithto the Treasurer of State and credited to the Department of Agriculture, Food and Rural Resources for the administration of this Article and other expenses incident to the administration of saidthe department, and shallmust be expended by the saidcommissioner for the purposes for which saidthe department is created. If any of such fees are not expended during the year in which they are collected, the unexpended balance shalldoes not lapse, but shallmust be carried as a continuing account and available for the purposes specified until expended.
Sec. 2. 7 MRSA §1017, sub-§1, as amended by PL 1997, c. 606, §10 and PL 1999, c. 547, Pt. B, §78 and affected by §80, is further amended to read:
1. Acts enumerated. The commissioner or the commissioner's duly authorized agent may refuse to grant or renew a license, after notice and opportunity for a hearing is provided in a manner consistent with the Maine Administrative Procedure Act as to adjudicatory proceedings, upon a finding that any of the following acts have existed within 2 years of the date of the filing of an application for license:
A. That fraudulent charges or returns have been made by the applicant or licensee for the handling, sale or storage of potatoes or rotation crops, or for the rendering of any service in connection with the handling, sale or storage of potatoes or rotation crops;
B. That the applicant or licensee has failed or refused to render a true account of sales, or to make a settlement thereon, within the time and in the manner required by this Article, or has failed or refused to pay for potatoes or rotation crops purchased by the applicant or licensee within 30 calendar days after acceptance of the potatoes or rotation crops;
C. That the applicant or licensee has knowingly made any false material statement as to the condition, quality or quantity of potatoes or rotation crops received, handled, sold, purchased or stored by the applicant or licensee;
D. That the applicant or licensee directly or indirectly has purchased for that applicant's or licensee's own account, potatoes or rotation crops received by the applicant or licensee upon consignment without prior authorization from consignor together with price fixed by consignor or without promptly notifying the consignor of such purchase. This does not prevent any dealer, processor, broker, agent or retailer, in order to close the day's business, from taking into account in the record of sales miscellaneous lots or parcels of potatoes or rotation crops remaining unsold, if such dealer, processor, broker, agent or retailer on the business day next following properly enters any such transaction in that applicant's or licensee's accounts;
E. That the applicant or licensee has made any substantial misrepresentation as to the conditions of the market for potatoes or rotation crops;
F. That the applicant or licensee has made fictitious sales or has defrauded or attempted to defraud a producer;
G. That a dealer, processor, broker, agent or retailer to whom any consignment is made has reconsigned such consignment to another dealer, processor, broker, agent or retailer and has received, collected or charged by such means more than one commission for making the sale therefor for the consignor without written consent of such consignor;
H. That the licensee knowingly made any false material statements in the procurement of such license;
I. That the applicant or licensee has not accounted promptly and properly to the producer with regard to any claim settled or collected by the applicant or licensee for such producer;
J. That the applicant or licensee has failed or refused, upon demand, to permit the commissioner or the commissioner's agents to make the investigations, examinations or audits as provided in this Article or that the applicant or licensee has removed or sequestered any books, records or papers necessary to any such investigations, examinations or audits, or has otherwise obstructed the same;
K. That the licensee has failed or refused to keep and maintain the records as required by this Article;
L. That the applicant or licensee has committed any act or conduct with regard to the handling, sale or storage of potatoes or rotation crops whether of the same or different character than specified in this subsection, which constitutes or demonstrates bad faith, incompetency or untrustworthiness, or dishonest, fraudulent or improper dealings;
M. That the applicant or licensee has failed to deliver to the seller the confirmation required by section 1022 within the time specified
N. That the applicant or licensee has failed to maintain a bond to ensure financial responsibility to producers or other licensees as required under section 1015.
The District Court may, in a manner consistent with the Maine Administrative Procedure Act, suspend or revoke a license upon finding any of the enumerated violations within 2 years of the date of the filing of a complaint.
Sec. 3. 7 MRSA §1017, sub-§4, as amended by PL 1997, c. 606, §11 and PL 1999, c. 547, Pt. B, §78 and affected by §80, is
further amended to read:
4. Notification of insufficient or no payment. Producers may notify the Department of Agriculture, Food and Rural Resources of insufficient or no payment for potatoes or rotation crops
delivered toafter acceptance by any processor in the State in violation of subsection 1, paragraph B.
A. The Commissioner of Agriculture, Food and Rural Resources or the commissioner's agent, upon notification by producers of insufficient or no payment, shall immediately investigate the complaint and shall, in a manner consistent with the provisions of the Maine Administrative Procedure Act as to adjudicatory proceedings, hold a hearing, unless such hearing is waived by the processor against whom the charge has been made. The processor accused of nonpayment shall provide the commissioner with a copy of the contract, if any, and all other materials and information to enable the commissioner to carry out the provisions of this section. Upon finding after investigation that the processor has violated the contract, express or implied, the commissioner may recover the proceeds of the bond required by section 1015 and apply those proceeds against the amounts owed producers. In the event the bond proceeds are inadequate to cover the debts owed producers, the commissioner shall require the processor to post
a an additional bond sufficient to cover the remaining debt owed to the producer or producers.
(1) The commissioner may require the licensee, who has been accused or found guilty after a hearing of insufficient payment or nonpayment of debts owed a producer, to formulate a schedule of payments to the producer that is satisfactory to the commissioner. The schedule of payments may not exceed a 30-day period.
(2) The licensee accused of or found by a hearing to be in default of payment to a producer shall submit a payment schedule to the commissioner within one week from the commissioner's request for a payment schedule. In the event that the schedule of payment is not satisfactory to the commissioner, the commissioner shall establish the schedule of payment not to exceed a 30-day period.
(3) The commissioner shall file a complaint with the District Court seeking to suspend the license of any licensee who fails to conform to the payment schedule established in this section until the producer is paid the total claim to which the producer is entitled.
(4) Upon the filing of a complaint by the commissioner in the District Court, the licensee shall post a bond sufficient to cover the total claim owed the producer on the date on which the complaint is filed. The bond required for an appeal procedure may be waived by the District Court in the event that the bond required in paragraph A is valid and sufficient to cover the total claim owed the producer.
(5) Nothing in this section may be construed to prohibit a producer from seeking redress for insufficient payment or nonpayment from licensees in any court or in accordance with any federal procedure established to obtain redress.
Sec. 4. 7 MRSA §1025, as amended by PL 1977, c. 696, §358, is further amended to read:
§1025. Forfeiture of bond; recovery on bond
If any licensee
shall failfails to make such payment as provided in section 1017, subsection 1, paragraph B, such licensee, by reason of such nonpayment shall beis in default as to all producers or licensees whose accounts shall thenremain unpaid, and the bond provided for shall beis forfeited to the extent of all sums then due from such licensee to saidthose producers or licensees, and by nature of such default, the conditions of such bond shall beare deemed to be broken, and any such producer or licensee may bring an action on the defaulted bond in the name of the commissioner for the benefit of saidthe producer or licensee. A producer or a licensee bringing an action against the bond must provide the department with notice of intent to file a claim within 30 days of the payment due date. A formal verified complaint and supporting documentation must be filed with the department within 90 days of the payment due date.
The right of a producer or a licensee to bring an action against the bond is subject to the department's right to apply the proceeds of the bond against the producer's or licensee's debts in accordance with section 1017.
Sec. 5. 7 MRSA §1026, as repealed and replaced by PL 1977, c. 696, §84, is amended to read:
The commissioner may recover the penalties imposed for violations of this Article and any rules and regulations
promulgated thereunder in a civil action brought in
his the commissioner's own name, the venue to be as in other civil actions and, if he the commissioner prevails in that action, he the commissioner may recover full costs, including, but not limited to, attorney's fees. The commissioner shall be is entitled to and shall receive the assistance of the Attorney General and of the several district attorneys.
Sec. 6. 7 MRSA §1028, as repealed and replaced by PL 1977, c. 696, §86, is amended by adding at the end a new paragraph to read:
Each day a violation under this section remains uncorrected may be counted as a separate offense. Penalties may be imposed for each violation.
Emergency clause. In view of the emergency cited in the preamble, this Act takes effect when approved.
Effective June 8, 2005.
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