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This entry was published on 2014-09-22
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SECTION 258-C
Granting and revoking licenses
Agriculture & Markets (AGM) CHAPTER 69, ARTICLE 21
§ 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.