(1) For the purpose of enforcing this part 3, the commissioner may receive complaints from persons against a dealer, small-volume dealer, agent, or person assuming or attempting to act as a dealer, small-volume dealer, or agent and, upon the receipt of a complaint, may make any and all necessary investigations relative to the complaint.
The commissioner upon the commissioner's own motion may, and upon the verifiedcomplaint of any person shall, investigate any transactions involving this part 3.
(a) The commissioner, upon consent of the licensee or upon obtaining an administrative search warrant, has free and unimpeded access to all buildings, yards, warehouses, and storage facilities owned by a licensee in which farm products are kept, stored, handled, processed, or transported.
The commissioner, upon consent of the licensee or upon obtaining a search warrant,has free and unimpeded access to all records required to be kept by the licensee and may make copies of the records.
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 the order of the court is punishable as a contempt of court.
The commissioner may examine the ledgers, books, accounts, memoranda, and otherdocuments and the farm products, scales, measures, and other items in connection with the business of a licensee relating to whatever transactions may be involved.
The commissioner need not investigate or act upon complaints regarding transactionsthat 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, small-volume dealers, or owners of farm products, together with the accounts unaccounted for or due and owing to them by the licensee, and shall request all the producers, dealers, small-volume dealers, or owners to file verified statements of their respective claims with the commissioner. If, after the commissioner makes the request for verified statements, a producer, dealer, small-volume 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 3 on behalf of the producer, dealer, small-volume dealer, or owner.
In the course of an investigation, the commissioner may attempt to effectuate a settlement between the respective parties.
(a) If the commissioner determines, after concluding an investigation on a complaint, that reasonable grounds exist to believe that a licensee has violated this part 3 or section 35-36104, the commissioner shall notify the licensee that the complaint is valid and 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 a licensee is necessary, the commissioner shall cause a copy of the complaint or the grounds specified in section 35-36-306, 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 the location deemed by the commissioner to be most convenient.
The commissioner shall conduct the hearing pursuant to section 24-4-105. Thereafter, the commissioner shall enter in the commissioner's office 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 3 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 3 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 enter an order directing the offender to pay the person complaining the amount of damages on or before the date fixed in the order. The commissioner shall cause to be furnished a copy of the decision to all the respective parties to the complaint.
As a result of the hearing, the commissioner may also enter an 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 35-36313 or that the licensee has violated this part 3 or section 35-36-104.
(a) If a person against whom an order, as specified in subsection (8)(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.
If the commissioner issues an order to show cause pursuant to subsection (10)(a) ofthis section, a copy of the order to show cause, together with a notice of the time and place of the hearing on the order to show cause, 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 in the commissioner's office an order and decision specifying the facts established at the hearing and dismissing the order to show cause, directing the suspension or revocation of the license held by the licensee, or making such other conditional or probationary orders as may be proper. The commissioner shall cause a copy of the order and decision to be furnished to the licensee.
Nothing in this section limits the power of the commissioner to revoke or suspend alicense when satisfied of the existence of any of the facts specified in section 35-36-313.
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 (6) 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 (6) 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, small-volume dealer, or owner.
For the purpose of this section, a transaction is deemed to have occurred:
On the date that possession of farm products is transferred by a claimant; or
On delayed payment transactions, on the contractual date of payment, or, if there isno contractual date of payment, thirty days following the transfer of title.
(13) The commissioner has discretion to close from public inspection complaints of record made to the commissioner and the results of the commissioner's investigations 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.
Source: L. 2020: Entire article amended with relocations, (HB 20-1213), ch. 160, p. 744, § 2, effective June 29.
Editor's note: This section is similar to former § 35-37-107 as it existed prior to 2020.