ORS Chapter 585 - Oregon Statutes

Chapter 585 — ProduceDealers

 

2009 EDITION

 

 

PRODUCEDEALERS

 

AGRICULTURALMARKETING AND WAREHOUSING

 

585.010     Definitionsfor ORS 585.010 to 585.220

 

585.020     Licensesrequired for produce dealers, peddlers and cash buyers

 

585.030     Applicationfor license; designating agent for service of process

 

585.040     Issuanceof license; when license expires; rules

 

585.045     Bondor letter of credit required for wholesale produce dealer

 

585.047     Procedureon default of dealer

 

585.050     Fees

 

585.060     Refusal,suspension or revocation of licenses

 

585.070     Publicationof list of licensees

 

585.080     Platesrequired for vehicles; other indicia of possession of license

 

585.090     Unlawfuluse of license certificate or plates

 

585.100     Questioningof person transporting produce

 

585.105     Recordsto be kept by cash buyer

 

585.110     Recordto be kept by wholesale dealer for purchases on credit

 

585.120     Recordto be kept by wholesale dealer for commission sales

 

585.130     Statementand remittances to consignor

 

585.140     Inspectionby department to determine condition of produce when in dispute; fee;certificate

 

585.150     Enforcement;investigation and adjustment of controversies; assignment of claims todirector; recovery on claims

 

585.160     Recordsof department prima facie evidence

 

585.170     Rightof access to vehicles and premises

 

585.175     Periodicinspections

 

585.180     Rulesand regulations

 

585.190     Dispositionof moneys received; continuing appropriation; disposition of fines

 

585.200     Enjoiningviolations

 

585.210     Prohibitedacts

 

585.213     Paymentby wholesale produce dealer for purchases from grower; penalty; damage action

 

585.215     Paymentfor purchases from wholesale produce dealer; damage action

 

585.220     Departmentemployee peace officer powers; jurisdiction of courts

 

585.990     Penalties

 

      585.010Definitions for ORS 585.010 to 585.220. As used in ORS 585.010 to 585.220,unless the context requires otherwise:

      (1)“Cash buyer” means any person who acts as a wholesale produce dealer and who,at the time of obtaining possession or control of any produce, pays the fullagreed price in lawful money of the United States or by certified check,cashier’s check or post-office money order.

      (2)“Department” means the State Department of Agriculture.

      (3)“Grower” means any person engaged in the business of growing or producing anyproduce and includes any cooperative organization composed exclusively ofgrowers and handling exclusively the produce of its own members and operatingunder and by virtue of the laws of this state or of any other state or of theUnited States.

      (4)“Produce” means fruits and vegetables, but it does not include fruits andvegetables purchased for the purpose of reselling them canned, dried, frozen orin other preserved or concentrated form or for manufacturing into a product orby-product in which the individuality of the individual specimens of such fruitand vegetables is lost, if such fruits and vegetables are actually so used. “Produce”does not include certified seed potatoes purchased for the purpose of resellingthem for seed.

      (5)“Retail produce peddler” means any person who sells or offers for sale orexposes for sale produce which the person has not grown or produced, from anyvehicle at any dwelling house, restaurant, eating house, hotel or any otherpublic or private place where food is prepared for consumption and not resoldin its original form and condition, and any person who sells to or offers forsale to the general public any produce, which the person has not grown orproduced, from a vehicle in any place within this state.

      (6)“Wholesale produce dealer” means any person who deals in, handles or trades inproduce and who does not operate exclusively as a grower, retailer orwarehouseman; but this definition does not include any person who is a cashbuyer. [Amended by 1959 c.64 §1; 1959 c.431 §1]

 

      585.020Licenses required for produce dealers, peddlers and cash buyers. No person shallengage or continue in business as a wholesale produce dealer, as a retailproduce peddler or as a cash buyer, unless the person has first made writtenapplication for and obtained from the State Department of Agriculture a licenseso to do, and has paid the license fees required by ORS 585.050. [Amended by1959 c.431 §2]

 

      585.030Application for license; designating agent for service of process. (1)Applications for licenses shall be filed with the State Department ofAgriculture. Applications shall be made on forms furnished by the departmentand shall contain such information as the department requires for theenforcement of ORS 585.010 to 585.220.

      (2)In addition to the other information the department requires, the applicantshall designate a person or persons in Oregon, together with the residence orbusiness address of such person or persons, upon whom service of summons or anyother legal process or notice can be made in suits or acts against theapplicant brought in Oregon or for the service of notices required under ORS585.010 to 585.220.

      (3)Fraud or misrepresentation in making any application is sufficient grounds forthe department to refuse to issue any license or to revoke any license issuedunder ORS 585.010 to 585.220.

 

      585.040Issuance of license; when license expires; rules. Upon the filingof the application and the payment of appropriate fees, the State Department ofAgriculture shall, if the department is satisfied that the applicant isentitled thereto, issue to the applicant a license to conduct the business ofwholesale produce dealer, retail produce peddler or cash buyer, as the case maybe. The licenses shall be in the form the department prescribes and shallexpire on June 30 of each year or on such date as may be specified bydepartment rule. [Amended by 1959 c.431 §3; 1985 c.353 §2; 2007 c.768 §15]

 

      585.045Bond or letter of credit required for wholesale produce dealer. (1) Before anyoriginal license or renewal license to operate as a wholesale produce dealer isfurnished, the applicant shall make and deliver to the State Department ofAgriculture a surety bond of a company authorized to do business in this state,or an irrevocable letter of credit issued by an insured institution, as definedin ORS 706.008, in the amount of $15,000. The department shall prescribe theform for and approve the bond, which shall be payable to this state for thebenefit of growers and conditioned upon the faithful performance of allobligations to growers by the wholesale produce dealer.

      (2)The surety company may cancel the bond or the letter of credit issuer maycancel the letter of credit by sending a written notice by registered orcertified mail to the department and to the wholesale produce dealer. Theeffective date of the cancellation is 60 days after the notice is received bythe department.

      (3)The department shall suspend the license of any wholesale produce dealer as ofthe effective date of the cancellation of the bond or letter of credit of thedealer. The department shall withdraw such suspension of license upon itsreceiving a bond or letter of credit as authorized by subsection (1) of thissection.

      (4)A cash buyer is not required to furnish a bond or letter of credit to thedepartment.

      (5)Notwithstanding subsection (1) of this section, a person is required to makeand deliver only one bond or letter of credit for any business operated underone entity or one ownership, regardless of the number of separate locations orplaces of business in this state. [1959 c.431 §§6,8; 1961 c.282 §1; 1985 c.426 §1;1991 c.331 §89; 1997 c.631 §503]

 

      585.047Procedure on default of dealer. (1) Upon default of a wholesale producedealer under any condition of the bond or letter of credit required by ORS585.045, the State Department of Agriculture shall:

      (a)Give reasonable notice to growers to file claims with the department.

      (b)Fix a reasonable time within which such filing shall be done.

      (c)Investigate each claim filed and reasonably verify the circumstances underwhich the claims accrued and the good faith of the claimants.

      (2)With the approval of the claimants who filed claims, the department may settlesuch claims with the surety or letter of credit issuer, without filing legalaction. Such settlement, unless appealed to the circuit court within 30 days asprovided by law, is final between the surety or letter of credit issuer and allclaimants covered by the bond or letter of credit.

      (3)If any claimant does not agree with the findings of the department, thedepartment shall file a declaratory judgment action without right to jury trialin the circuit court in the name of the State of Oregon for the benefit of theclaimants as authorized by ORS chapter 28. Unless appealed as prescribed bylaw, the order of the court shall be final between the surety or letter ofcredit issuer and all claimants covered by the bond or letter of credit. [1961c.282 §3; 1979 c.284 §176; 1991 c.331 §90]

 

      585.050Fees.Applicants for licenses shall pay to the State Department of Agriculture feesas follows:

      (1)Every wholesale produce dealer shall pay a fee to be established by thedepartment not to exceed $100 and, in addition, the wholesale produce dealershall pay a fee of $5 for each motor vehicle used by the wholesale producedealer in business to transport produce; but no motor vehicle shall be licensedunder the $5 license fee unless the vehicle is registered and licensed by the Departmentof Transportation or by the motor vehicle licensing agency of another state, inthe name of such wholesale produce dealer. If any wholesale produce dealercarries on such business at more than one establishment, location or place ofbusiness within this state, then a separate application shall be made and aseparate license issued and an additional fee, to be established by thedepartment not to exceed $100, paid for each separate establishment, locationor place of business.

      (2)Every retail produce peddler shall pay a fee to be established by thedepartment not to exceed $20, which fee entitles the retail produce dealer tothe use in the retail produce business of one vehicle and, in addition, theretail produce dealer shall pay an additional fee to be established by thedepartment not to exceed $20 for each additional vehicle so used; but no motorvehicle shall be licensed under the license fee to be established by thedepartment not to exceed $20 unless the vehicle is registered and licensed in thename of the retail produce peddler by the Department of Transportation or bythe motor vehicle licensing agency of another state or unless the vehicle isused by the retail produce peddler under a lease approved by the department.

      (3)Every cash buyer shall pay a license fee to be established by the departmentnot to exceed $100. [Amended by 1959 c.431 §4; 1989 c.611 §1]

 

      585.060Refusal, suspension or revocation of licenses. (1) The StateDepartment of Agriculture may refuse to grant a license, and may revoke orsuspend any license, as the case may require, when it is satisfied of theexistence of any of the following facts:

      (a)That fraudulent charges or returns have been made by the applicant or licenseefor the handling, sale or storage of, or for rendering any service inconnection with the handling, sale or storage of, any produce.

      (b)That the applicant or licensee has failed or refused to render a true accountof sales, or to make a settlement thereon, or to pay for produce received,within the time and in the manner required by ORS 585.010 to 585.220.

      (c)That the applicant or licensee has made any false statement as to thecondition, quality or quantity of produce received, handled, sold or stored bythe applicant or licensee.

      (d)That the applicant or licensee, directly or indirectly, has purchased for theaccount of the applicant or licensee produce received by the applicant orlicensee, upon consignment without prior authority from the consignor, togetherwith price fixed by consignor, or without promptly notifying the consignor ofsuch purchase; but this does not prevent any wholesale produce dealer, sellingproduce on commission, from taking to account of sales, in order to close theday’s business, miscellaneous lots or parcels of produce remaining unsold, ifsuch wholesale produce dealer forthwith enters such transaction on the accountof sales of the wholesale produce dealer.

      (e)That the applicant or licensee has made fictitious sales or has been guilty ofcollusion to defraud any grower of produce.

      (f)That any wholesale produce dealer to whom any consignment is made hadreconsigned such consignment to another wholesale produce dealer for thepurpose of receiving, collecting or charging by such means more than onecommission for making the sale therefor for the consignor, unless by theconsent of the consignor.

      (g)That the licensee was intentionally guilty of fraud or deception in theprocurement of the license.

      (h)That the licensee or applicant has failed or refused to file with thedepartment a schedule of charges for services in connection with producehandled on account of or as an agent of another.

      (i)That the licensee has violated any provision of ORS 585.010 to 585.220.

      (2)The provisions of ORS 561.305, pertaining to the revocation, suspension orrefusal to issue licenses, apply to this section.

 

      585.070Publication of list of licensees. The State Department of Agriculture maypublish in pamphlet form, or in any other manner at such times as it deemsadvisable, a list of all persons licensed under ORS 585.010 to 585.220. Thelist may include a list of all persons whose licenses have been refused,revoked or suspended under ORS 585.010 to 585.220.

 

      585.080Plates required for vehicles; other indicia of possession of license. (1) The StateDepartment of Agriculture shall issue license plates to be attached to allvehicles used in business by any licensed wholesale produce dealer or retailproduce peddler. The license plates shall be made in the form and mannerprescribed by the department, and shall be issued for the number of vehicles tobe used by the applicant in the produce business and for which application hasbeen made and a fee paid as provided in ORS 585.010 to 585.220. Every licenseeshall keep the department informed of all motor vehicles used by the licenseein the business of the licensee and of the number of the ownership certificateapplying to each motor vehicle and the licensee shall notify the department ofall changes in ownership of any such motor vehicle. In case of a decrease inthe number of vehicles for which the licensee is entitled to use licenseplates, all excess plates shall immediately be returned to the department. Thereturned plates shall be retained by the department until the end of the licenseperiod and may be repossessed by the licensee upon proof that the licensee isagain entitled to use them.

      (2)All license plates and all other indicia of the possession of a license are atall times the property of the State of Oregon. Each licensee is entitled to thepossession thereof only for the duration of the license, and the department maytake possession of the plates or other indicia on the expiration, suspension orrevocation thereof. Any refusal by a person in possession of such plates or otherindicia to return the same to the department, upon the termination orsuspension of the license under which they were issued, is a violation of ORS585.010 to 585.220.

      (3)No person shall operate any vehicle in the conduct of business as a wholesaleproduce dealer or as a retail produce peddler, unless the license platesprovided for in this section are attached to the rear of the vehicle in plainsight and kept clean and readable.

 

      585.090Unlawful use of license certificate or plates. No licensee underORS 585.010 to 585.220 shall loan or permit any other person to have inpossession or to use any license certificate or plate issued to such licenseeby the State Department of Agriculture. No person shall carry, exhibit or usein any manner any license certificate or plate, provided for by ORS 585.010 to585.220, which has not lawfully been issued to such person, or after thelicense of the person has expired.

 

      585.100Questioning of person transporting produce. Every operator or owner of anyvehicle transporting produce on any street or public highway within this stateshall, upon request of any officer, employee or deputy of the State Departmentof Agriculture, or upon request of any state, county or local police officer,answer any questions concerning any produce being transported, and, ifrequested, shall sign a statement covering the answers.

 

      585.105Records to be kept by cash buyer. (1) Every cash buyer upon buying anyproduce from a grower shall make and keep accurate records of the transaction,including:

      (a)The name and address of the grower.

      (b)The date the produce is received and the amount paid.

      (2)The records shall be available at reasonable times for inspection by authorizedrepresentatives of the State Department of Agriculture. [1959 c.431 §9]

 

      585.110Record to be kept by wholesale dealer for purchases on credit. Every wholesaleproduce dealer, upon buying on credit any produce from any grower, shallpromptly make and keep a correct record showing in detail the following withreference to the handling or sale of such produce:

      (1)Name and address of grower.

      (2)Date produce is received, and the amount thereof.

      (3)Condition of the produce upon receipt of it by such person.

 

      585.120Record to be kept by wholesale dealer for commission sales. (1) Everywholesale produce dealer, having received any produce from a grower thereof forsale upon a commission basis, shall promptly make and keep a correct recordshowing in detail the following with reference to the handling, sale or storageof the produce:

      (a)Name and address of consignor.

      (b)Date received and the amount thereof.

      (c)Grade and condition upon arrival.

      (d)Date of such sale for account of consignor. Such records shall be open toinspection by the State Department of Agriculture at any time.

      (e)Price for which sold.

      (f)An itemized statement of the charges to be paid by consignor in connection withthe sale.

      (g)Each consignment of produce shall be given a lot number or other identifyingmark. The number or mark shall appear on all sales tags and on any otheressential records needed to show what the produce actually sold for.

      (h)A detailed statement shall be kept on file of the filing of any claim or claimswhich have been or may be filed by such person selling on commission, againstany person, for overcharges or for damages resulting from the injury ordeterioration of such produce by the act or neglect or failure of such person.Such records shall be open to inspection by the department and by the consignorof produce for whom such claim or claims are made.

      (2)Every wholesale produce dealer who sells produce on a commission basis shallretain a copy of all records, including sales tags, account sales, and otherrecords covering each transaction, for a period of one year from the date ofthe transaction. The copy shall at all times be available for, and open to, theconfidential inspection of the department and the interested consignor or anyauthorized representative of either.

 

      585.130Statement and remittances to consignor. (1) A copy of records and accounts ofsales of produce, together with remittances in full of the amount realized bysuch sale, less the agreed commission and other charges, shall be delivered tothe consignor upon the consummation of the sale, together with all moneysreceived by the wholesale produce dealer in payment for any consignment ofproduce, less the agreed commission and other charges, within 10 days afterreceipt of the moneys by any wholesale produce dealer who has sold produce on acommission basis, unless otherwise agreed in writing. The names and addressesof the purchasers need not be given.

      (2)The money returns, if any, collections or damages received by a person handlingproduce on commission, for and on behalf of a consignor of produce by reason ofovercharges, damages or deterioration of the produce by the act or neglect orfailure of any person forthwith shall be paid to the consignor, less chargesfor collection thereof in accordance with the schedule of charges filed underORS 585.010 to 585.220.

 

      585.140Inspection by department to determine condition of produce when in dispute;fee; certificate.If there is a dispute or disagreement between a consignor and a wholesaleproduce dealer, selling on a commission basis, at the time of delivery as tocondition, quality, grade, pack, quantity or weight of any lot, shipment orconsignment of produce, the State Department of Agriculture shall furnish, uponthe payment of a reasonable fee therefor by the requesting party, a certificateestablishing the condition, quality, grade, pack, quantity or weight of thelot, shipment or consignment. The certificate is prima facie evidence in allcourts of this state as to the recitals thereof at the time the inspection wasmade.

 

      585.150Enforcement; investigation and adjustment of controversies; assignment ofclaims to director; recovery on claims. (1) The State Department of Agricultureshall enforce the provisions of ORS 585.010 to 585.220, and to that end thedepartment has the authority granted in this section.

      (2)The department may investigate and attempt equitably to adjust controversiesbetween any grower or growers, and any wholesale produce dealer, retail producepeddler, or any person acting or assuming to act in the capacity of any of suchpersons.

      (3)The department may take assignments of claims, arising out of any controversiesbetween the parties named in subsection (2) of this section, in trust for theassigning grower or growers. All such assignments shall run to the Director ofAgriculture and successors in office. The Director of Agriculture may, asassignee of any such claim, sue any of the persons mentioned in subsection (2)of this section or any combination of such persons. The director shall notbring a suit or action on any claim until the parties to be sued have beennotified of the assignment of claims and have been given a reasonableopportunity to make an equitable adjustment thereof with the department. Anyclaim so assigned to the director authorizes the director to make anyadjustment thereof which, in the opinion of the director, is equitable. Themoneys received by the department on any claims so assigned to it shall be paidinto the Department of Agriculture Account; and such moneys shall be paid tothe assignor after first deducting any costs and expenses incurred by thedepartment in the collection of any such claim, and also after deducting fivepercent of any sum collected. The five percent deducted shall be used, togetherwith other moneys collected under the provisions of ORS 585.010 to 585.220, topay the expenses in the administration of ORS 585.010 to 585.220.

      (4)The Director of Agriculture may make complaint in a criminal action for anyviolation of any provision of ORS 585.010 to 585.220 which constitutes a crime.The director shall prosecute all legal proceedings in official capacity, but inthe name of the State of Oregon. The director may act through any authorizedofficer, employee or deputy of the department in any proceeding authorized by thissection.

      (5)The court may award reasonable attorney fees to the director if the directorprevails in an action under subsection (3) of this section. The court may awardreasonable attorney fees to a defendant who prevails in an action undersubsection (3) of this section if the court determines that the director had noobjectively reasonable basis for asserting the claim or no reasonable basis forappealing an adverse decision of the trial court. [Amended by 1981 c.897 §69;1995 c.696 §31]

 

      585.160Records of department prima facie evidence. Copies of records, inspectioncertificates and certified reports on file in the office of the StateDepartment of Agriculture are prima facie evidence of the matters thereincontained.