75-45-182 - Complaints against persons violating this article; administrative procedures; remedies; appeals. - Mississippi Statutes

§ 75-45-182. Complaints against persons violating this article; administrative procedures; remedies; appeals.
 

(1)  When a complaint is made against a person for violating any of the provisions of this article, or any of the rules and regulations promulgated hereunder, the Director of the Commercial Feed Division within the Mississippi Department of Agriculture and Commerce, or his designee, shall act as the reviewing officer. The complaint shall be in writing and shall be filed in the office of the Mississippi Department of Agriculture and Commerce ("department"). The reviewing officer shall deliver to the accused a copy of the complaint along with any supporting documents and a request for the accused to respond to the charges within thirty (30) days after service of the complaint upon the accused. Notification to the accused may be accomplished by certified mail or by an of the methods provided in Rule 4 of the Mississippi Rules of Civil Procedure. The accused shall respond in the form of a written answer along with all supporting documents. Upon expiration of the thirty-day period, the reviewing officer shall examine all pleadings and documents filed in the case for the purpose of determining the merit of the complaint, or the lack thereof. No evidentiary hearing shall be held at this stage. 
 

If the reviewing officer determines that the complaint lacks merit, he may dismiss same. If he finds that there is substantial evidence showing that a violation of this article or the rules and regulations promulgated hereunder has occurred, the reviewing officer may impose any or all of the following penalties upon the accused: (a) levy a civil penalty in an amount of no more than One Thousand Dollars ($1,000.00) for each violation; (b) revoke or suspend any permit, license or registration issued to the accused under the terms of this article and accompanying regulations; (c) issue a stop sale order; (d) issue a "withdrawal from distribution" order; (e) require the accused to relabel any product offered for sale which is not labeled in accordance with the provisions of this article; or (f) seize any product that is not in compliance with this article and destroy, sell or otherwise dispose of the product and apply the proceeds of any such sale to the costs herein and any civil penalties levied hereunder, with the balance to be paid according to the law. If any costs or penalties assessed hereunder have not been paid, they may be collected through a court system. A copy of the reviewing officer's decision shall be sent to the accused by certified mail. Either the accused or the department may appeal the decision of the reviewing officer to the commissioner by filing a notice of appeal with the department within thirty (30) days of receipt of the reviewing officer's decision. If no appeal is taken from the order of the reviewing officer within the allotted time, the order shall then become final. 

(2)  In the event of an appeal, the commissioner, or his designee, shall conduct a hearing relative to the charges. At the hearing before the commissioner, or his designee, the matter shall be heard de novo; the department shall have subpoena power, the witnesses shall be placed under oath and shall be subject to direct and cross examination and the testimony shall be recorded. Compliance with such subpoenas may be enforced by any court of general jurisdiction in this state. The commissioner, or his designee, shall receive and hear all the evidence and arguments offered by both parties and shall afford the accused a full opportunity to present all his defenses. 
 

Within a reasonable time after the hearing, the commissioner, or his designee, shall render an opinion, which either affirms, reverses or amends the order of the reviewing officer in whole or in part, and the order shall be final. A copy of the commissioner's order shall be sent to the accused by certified mail. 

(3)  Either the accused or the department may appeal the decision of the commissioner or his designee to the circuit court of the county of the residence of the accused, or if the accused is a nonresident of the State of Mississippi, to the Circuit Court of the First Judicial District of Hinds County, Mississippi. The appellant shall have the obligation of having the record transcribed and filing same with the circuit court. The appeal shall otherwise be governed by all applicable laws and rules affecting appeals to the circuit court. If no appeal is perfected within the required time, the decision of the commissioner, or his designee, shall then become final. 

(4)  The decision of the circuit court may then be appealed by either party to the Mississippi Supreme Court in accordance with the existing law and rules affecting such appeals. 

(5)  When any violation of this article or the rules and regulations promulgated hereunder occurs or is about to occur that presents a clear and present danger to the public health, safety or welfare requiring immediate action, the commissioner or any of the department's field inspectors may issue an order to be effective immediately before notice and a hearing that imposes any or all of the following penalties upon the accused: (a) a stop sale order; (b) a "withdrawal from distribution" order; (c) a requirement that the accused relabel a product that he is offering for sale which is not labeled in accordance with this article; or (d) the seizure of any product that is not in compliance with this article and the destruction, sale or disposal of the product and the application of the proceeds of such sale to the costs and civil penalties herein, with the balance to be paid according to law. The order shall be served upon the accused in the same manner that the summons and complaint may be served upon him. The accused shall then have thirty (30) days after service of the order upon him within which to request an informal administrative review before the reviewing officer. If the accused makes such a request within the required time, the reviewing officer shall provide an informal administrative review to the accused within ten (10) days after such request is made. If the accused does not request an informal administrative review within such time, then he will be deemed to have waived his right to same. At the informal administrative review, subpoena power shall not be available, witnesses shall not be sworn nor be subject to cross-examination and there shall be no court reporter or record made of the proceedings. Each party may present its case in the form of documents, oral statements or any other method. The rules of evidence shall not apply. The reviewing officer's decision shall be in writing, and it shall be sent to the accused by certified mail. If either party is aggrieved by the order of the reviewing officer, he may appeal to the commissioner for a full evidentiary hearing in accordance with the procedures described in subsection (2) of this section, except that there shall be no requirement for a written complaint or answer to be filed by the parties. Such appeal shall be perfected by filing a notice of appeal with the commissioner within thirty (30) days after the order of the reviewing officer is served on the appealing party. The hearing before the commissioner, or his designee, shall be held within a reasonable time after the appeal has been perfected. Failure to perfect an appeal within the allotted time shall be deemed a waiver of such right. 
 

Sources: Laws, 2001, ch. 555, § 12, eff from and after July 1, 2001.