(1) The department has the power to inspect commodity handlers' places of business. The department shall investigate any complaint concerning the operation of any commodity handler or any person attempting or offering to act as a commodity handler, subject to this part 2.
Complaints of record made to the commissioner and the results of the commissioner's investigations may, in the discretion of the commissioner, be closed to public inspection during the investigatory period and until dismissed or until notice of hearing and charges is served on a licensee, unless otherwise provided by court order.
The commissioner, upon consent of the licensee or upon obtaining an administrativesearch warrant, has the right to inspect any commodity handler's place of business where commodities are stored, handled, or received and any records pertaining to storage obligations and commodity positions kept by the commodity handler that pertain to the operation of the place of business. The property, books, records, accounts, and papers pertaining to storage obligations and commodity positions of every commodity handler are subject to inspection and copying by the commissioner.
The commissioner has full authority to administer oaths and take statements, to issuesubpoenas requiring the attendance of witnesses and the production of all books, memoranda, papers, and other documents, articles, or instruments, and to compel the disclosure by the witnesses of all facts known to them relative to the matters under investigation. Upon the failure or refusal of a witness to obey a subpoena, the commissioner may petition the district court, and, upon a proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey such an order of the court is punishable as a contempt of court.
The commissioner may examine the ledgers, books, accounts, memoranda, and otherdocuments and the commodities, scales, measures, and other items in connection with the business of any licensee relating to whatever transactions may be involved.
The commissioner is not required to investigate or act upon complaints regardingtransactions that occurred more than one hundred twenty days before the date upon which the commissioner received the written complaint.
If the investigation is against a licensee, the commissioner shall proceed to ascertainthe names and addresses of all producers, dealers, or owners of commodities, together with the accounts unaccounted for or due and owing to them by the licensee, and shall request the producers, dealers, or owners to file verified statements of their respective claims with the commissioner. If a producer, dealer, or owner fails, refuses, or neglects to file a verified statement in the office of the commissioner within thirty days after the date of the request, the commissioner is relieved of any further duty or action under this part 2 on behalf of the producer, dealer, or owner.
In the course of any investigation, the commissioner may attempt to effectuate asettlement between the respective parties.
(a) If the commissioner determines, after concluding an investigation on any complaint, that reasonable grounds exist to believe that a licensee has violated this part 2, the commissioner shall notify the licensee that the complaint is valid and shall inform the licensee of the licensee's opportunity to request a hearing, in writing, on the complaint within ten days after the date of the notice.
Upon the receipt of a request for a hearing from a licensee or if the commissionerdetermines that a hearing concerning any licensee is necessary, the commissioner shall cause a copy of the complaint or the grounds specified in section 35-36-205, together with a notice of the time and place of the hearing, to be served personally or by mail upon the licensee. Service shall be made at least ten days before the hearing, which shall be held in the city or town in which the business location of the licensee is situated or in which the transactions involved allegedly occurred or at any convenient place designated by the commissioner.
The commissioner shall conduct the hearing pursuant to section 24-4-105. Thereafter, the commissioner shall enter a decision specifying the relevant facts established at the hearing. If the commissioner determines from the facts specified that the licensee has not violated this part 2 or section 35-36-104, the commissioner shall dismiss the complaint. If the commissioner determines from the facts specified that the licensee has violated this part 2 or section 35-36-104, and that the licensee has not yet made complete restitution to the person complaining, the commissioner shall determine the amount of damages, if any, to which the person is entitled as the result of the violation and shall enter an order directing the offender to pay the amount to the person complaining on or before the date fixed in the order. A copy of the decision shall be furnished to all the respective parties to the complaint.
As a result of the hearing, the commissioner may also enter any order suspending orrevoking the license of a licensee or may place the licensee on probation if the commissioner determines that the licensee has committed any of the unlawful acts specified in section 35-36217 or that the licensee has violated this part 2 or section 35-36-104.
(a) If a person against whom an order, as specified in subsection (9)(c) of this section, is made and issued fails, neglects, or refuses to obey the order within the time specified in the order, the commissioner may issue a further order to that person directing the person to show cause why the person's license should not be suspended or revoked for failure to comply with the order.
In such case, a copy of the order to show cause, together with a notice of the time andplace of the hearing, shall be served personally or by mail upon the person involved. Service shall be made at least ten days before the hearing, which shall be held in the city or town in which the business location of the licensee is situated or at any convenient place designated by the commissioner.
The commissioner shall conduct the hearing pursuant to section 24-4-105 and thereafter shall enter an order and decision specifying the facts established at the hearing and either dismissing the order to show cause, or directing the suspension or revocation of the license held by the licensee, or making such other conditional or probationary orders as may be proper. A copy of the order and decision shall be furnished to the licensee.
Nothing in this section limits the power of the commissioner to revoke or suspend alicense when the commissioner is satisfied that one or more of the acts specified in section 3536-217 was committed.
Whenever the absence of records or other circumstances makes it impossible orunreasonable for the commissioner to ascertain the names and addresses of all persons specified in subsection (7) of this section, the commissioner, after exercising due diligence and making a reasonable inquiry to secure the information from all reasonable and available sources, is not liable or responsible for the claims or the handling of claims that may subsequently appear or be discovered. After ascertaining all claims, assessments, and statements in the manner set forth in subsection (7) of this section, the commissioner may then demand payment on the bond or irrevocable letter of credit on behalf of those claimants whose claims have been determined by the commissioner as valid and, in the instance of a bond, may settle or compromise the claims with the surety company on the bond and execute and deliver a release and discharge of the bond involved. Upon the refusal of the surety company to pay the demand, the commissioner may bring an action on the bond on behalf of the producer, dealer, or owner.
For the purpose of this section, a transaction is deemed to have occurred:
On the date that possession of commodities is transferred by a claimant; or
In the case of delayed payment transactions, on the contractual date of payment or, ifthere is no contractual date of payment, thirty days following the transfer of title.
A commodity handler or small-volume commodity handler shall maintain a publicwarehouse in a manner adequate to provide a convenient and safe means of ingress and egress to the various storage bins and compartments by those persons authorized to make inspections.
(a) Each warehouse shall be kept open for the purpose of receiving commodities for storage and delivering commodities out of storage every business day for a period of not less than six hours between the hours of 8 a.m. and 6 p.m., except as provided in subsection (15)(b) of this section. The commodity handler or small-volume commodity handler shall post conspicuously on the door of the public entrance to the commodity handler's or small-volume commodity handler's office and to the commodity handler's or small-volume commodity handler's warehouse a notice showing the hours during which the warehouse will be kept open; except that the notice is not necessary when a warehouse is kept open continuously from 8 a.m. to 6 p.m.
(b) Whenever a warehouse is not to be kept open as required by subsection (15)(a) of this section, the notice posted as prescribed in subsection (15)(a) of this section must state the period during which the warehouse is to be closed and the name, address, and telephone number, if any, of the person who is authorized to deliver commodities stored in the warehouse upon lawful demand by the depositor of the commodity or the holder of the receipt of the commodity, as the case may be.
Source: L. 2020: Entire article amended with relocations, (HB 20-1213), ch. 160, p. 732, § 2, effective June 29.
Editor's note: This section is similar to former § 35-36-116 as it existed prior to 2020.