N.Y. Agriculture & Markets Law § 258-c: Granting and revoking licenses

§ 258-c. Granting and revoking licenses. No license shall be denied to

a person not now engaged in business as a milk dealer, or for the

continuation of a now existing business, and no license shall be denied

to authorize the extension of an existing business by the operation of

an additional plant or other new additional facility, unless the

commissioner finds after due notice and opportunity of hearing to the

applicant or licensee, that the applicant is not qualified by character

or experience or financial responsibility or equipment properly to

conduct the proposed business, provided however, that no new application

shall be denied solely for the reason of inadequate equipment if it is

shown that provision has been made for the acquisition of same. The

commissioner may also decline to grant or renew a license or may suspend

or revoke a license already granted in whole or in part, upon due notice

and opportunity of hearing to the applicant or licensee, when he is

satisfied of the existence of any of the following reasons:

(a) That a milk dealer has rejected, without reasonable cause, any

milk purchased or has rejected without reasonable cause or reasonable

advance notice, milk delivered in ordinary continuance of a previous

course of dealing, except where contract has been lawfully terminated.

(b) That the milk dealer has failed to account and make payment

without reasonable cause, for any milk purchased.

(c) That the milk dealer has committed any act injurious to the public

health or public welfare.

(d) Where the milk dealer is insolvent or has made a general

assignment for the benefit of creditors or has been adjudged a bankrupt

or where a money judgment has been secured against him, upon which an

execution has been returned wholly or partly unsatisfied.

(e) Where the milk dealer has continued in a course of dealing of such

a nature as to satisfy the commissioner of his inability or

unwillingness properly to conduct the business of receiving or selling

milk or to satisfy the commissioner of his intent to deceive or defraud

producers or consumers.

(f) Where the milk dealer has been a party to a combination to fix

prices, contrary to law. A co-operative association of dairymen

organized under or operated pursuant to the provisions of chapter

seventy-seven of the consolidated laws and engaged in making collective

sales or marketing for its members or shareholders of dairy products

produced by its members or shareholders shall not be deemed or construed

to be a conspiracy or combination in restraint of trade or an illegal

monopoly nor shall the contracts, agreements, arrangements or

combinations heretofore or hereafter made by such association, or the

members, officers or directors thereof, in making such collective sales

and marketing and prescribing the terms and conditions thereof, be

deemed or construed to be conspiracies or to be injurious to public

welfare, trade or commerce, if otherwise authorized by such chapter or

law. The provisions of and the remedies provided by this subdivision,

section and article shall be in addition to and shall not preempt or

displace the provisions of article twenty-two of the general business

law.

(g) Where there has been a failure either to keep records or to

furnish the statements or information required by the commissioner.

(h) Where it is shown that any material statement upon which the

license was issued is or was false or misleading or deceitful in any

particular.

(i) Where the applicant or licensee has been convicted of a felony.

(j) Where the applicant is a partnership or a corporation and any

individuals holding any position or interest or power of control therein

has previously been responsible in whole or in part for any act on

account of which a license may be denied, suspended or revoked, pursuant

to the provisions of this article.

(k) Where the milk dealer has violated any of the provisions of this

chapter.

(l) Where the milk dealer has been duly required to give a bond or an

additional bond and has failed to do so, or has failed to make timely

payment to the producers security fund if he has elected to participate

therein, or to the cooperative security fund if required to make

payments thereto.

(m) Where the required permit from the local health officer has

terminated or been revoked.

(n) Where the milk dealer has ceased to operate the milk business for

which the license was issued.

(o) Notwithstanding any provision of this article to the contrary, no

license shall be granted by the commissioner in the event an applicant

for such license is buying or accepting the business of another dealer

until the applicant has furnished the commissioner sufficient evidence

that all payments due producers for milk delivered to the selling dealer

have been made in full or that a portion of the purchase price

reasonably sufficient to satisfy such claims has been placed in an

escrow account with the commissioner.

(p) Assumption of business by licensed dealer. No licensed dealer

purchasing the assets or assuming the operation of another licensed

dealer may distribute milk in the area served by the dealer whose assets

are being purchased or whose operation is being assumed unless such

dealer purchasing the assets or assuming such operation has furnished

the commissioner sufficient evidence that all payments due producers for

milk delivered have been made in full or that a portion of the purchase

price reasonably sufficient to satisfy such claims has been placed in an

escrow account with the commissioner.

The commissioner may grant or renew a license or may decline to

suspend or revoke a license conditionally, or upon the agreement of the

licensee or applicant to do or omit to do any definite act, but such

condition and/or agreement must have some appropriate relation to the

administration of this article.

Whenever a milk dealer's license is denied or revoked or any

application for an original license is denied, there shall be filed in

the office of the division of milk control a memorandum by the

commissioner, which memorandum shall state the reasons for the denial of

the application or the denial or revocation of the license. There shall

also be filed a transcript of the testimony taken at the hearing given

to the applicant or licensee. A transcript of the testimony taken at the

hearing shall be given to the applicant or licensee for whom the hearing

was held. In addition, the said memorandum as filed in the office of the

division of milk control shall set forth findings of fact and the

conclusions upon which the said commissioner shall base his denial or

revocation. The use of the word license in this article shall include

the application for or denial of an extension of license. Upon the

filing of the memorandum in the office of the division of milk control a

copy thereof shall be mailed forthwith to the applicant or licensee and

to his attorney if the applicant or licensee has appeared by attorney.

The commissioner shall notify an applicant for a license within thirty

days of receipt of the application as to whether all information

required by the commissioner is stated within the application. Upon

receipt of a completed application, the commissioner shall conduct any

investigation and hearing and shall make a final determination on a

license within one hundred twenty days or, if a hearing has been held

with respect to such license, within one hundred eighty days. Where the

commissioner finds that a final determination cannot be made within such

period, he shall indicate his reasons for extending the application

review period by not more than one hundred twenty days to the license

applicant. Any delay resulting from adjournments granted at the request

of the applicant, or as the result of a judicial order, shall not be

counted toward any time period provided for in this paragraph.