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 full agreed 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 any produce and includes any cooperative organization composed
exclusively of growers and handling exclusively the produce of its own
members and operating under and by virtue of the laws of this state or of
any other state or of the United States.
(4) "Produce" means fruits and vegetables, but it does not include
fruits and vegetables purchased for the purpose of reselling them canned,
dried, frozen or in other preserved or concentrated form or for
manufacturing into a product or by-product in which the individuality of
the individual specimens of such fruit and vegetables is lost, if such
fruits and vegetables are actually so used. "Produce" does not include
certified seed potatoes purchased for the purpose of reselling them for
seed.
(5) "Retail produce peddler" means any person who sells or offers
for sale or exposes for sale produce which the person has not grown or
produced, from any vehicle at any dwelling house, restaurant, eating
house, hotel or any other public or private place where food is prepared
for consumption and not resold in its original form and condition, and
any person who sells to or offers for sale to the general public any
produce, which the person has not grown or produced, from a vehicle in
any place within this state.
(6) "Wholesale produce dealer" means any person who deals in,
handles or trades in produce and who does not operate exclusively as a
grower, retailer or warehouseman; but this definition does not include
any person who is a cash buyer. [Amended by 1959 c.64 §1; 1959 c.431 §1]No person shall engage or continue in business as a wholesale
produce dealer, as a retail produce peddler or as a cash buyer, unless
the person has first made written application for and obtained from the
State Department of Agriculture a license so to do, and has paid the
license fees required by ORS 585.050. [Amended by 1959 c.431 §2](1) Applications for licenses shall be filed with the State
Department of Agriculture. Applications shall be made on forms furnished
by the department and shall contain such information as the department
requires for the enforcement of ORS 585.010 to 585.220.
(2) In addition to the other information the department requires,
the applicant shall designate a person or persons in Oregon, together
with the residence or business address of such person or persons, upon
whom service of summons or any other legal process or notice can be made
in suits or acts against the applicant brought in Oregon or for the
service of notices required under ORS 585.010 to 585.220.
(3) Fraud or misrepresentation in making any application is
sufficient grounds for the department to refuse to issue any license or
to revoke any license issued under ORS 585.010 to 585.220. Upon the filing
of the application and the payment of appropriate fees, the State
Department of Agriculture shall, if it is satisfied that the applicant is
entitled thereto, issue to the applicant a license to conduct the
business of wholesale produce dealer, retail produce peddler or cash
buyer, as the case may be. The licenses shall be in the form the
department prescribes and shall expire on June 30 of each year. [Amended
by 1959 c.431 §3; 1985 c.353 §2](1) Before any original license or renewal license to operate as
a wholesale produce dealer is furnished, the applicant shall make and
deliver to the State Department of Agriculture 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 defined in ORS 706.008, in
the amount of $15,000. The department shall prescribe the form for and
approve the bond, which shall be payable to this state for the benefit of
growers and conditioned upon the faithful performance of all obligations
to growers by the wholesale produce dealer.
(2) The surety company may cancel the bond or the letter of credit
issuer may cancel the letter of credit by sending a written notice by
registered or certified mail to the department and to the wholesale
produce dealer. The effective date of the cancellation is 60 days after
the notice is received by the department.
(3) The department shall suspend the license of any wholesale
produce dealer as of the effective date of the cancellation of the bond
or letter of credit of the dealer. The department shall withdraw such
suspension of license upon its receiving a bond or letter of credit as
authorized by subsection (1) of this section.
(4) A cash buyer is not required to furnish a bond or letter of
credit to the department.
(5) Notwithstanding subsection (1) of this section, a person is
required to make and deliver only one bond or letter of credit for any
business operated under one entity or one ownership, regardless of the
number of separate locations or places 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] (1) Upon default of a
wholesale produce dealer under any condition of the bond or letter of
credit required by ORS 585.045, 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 under which the claims accrued and the good faith of the
claimants.
(2) With the approval of the claimants who filed claims, the
department may settle such claims with the surety or letter of credit
issuer, without filing legal action. Such settlement, unless appealed to
the circuit court within 30 days as provided by law, is final between the
surety or letter of credit issuer and all claimants covered by the bond
or letter of credit.
(3) If any claimant does not agree with the findings of the
department, the department shall file a declaratory judgment action
without right to jury trial in the circuit court in the name of the State
of Oregon for the benefit of the claimants as authorized by ORS chapter
28. Unless appealed as prescribed by law, the order of the court shall be
final between the surety or letter of credit issuer and all claimants
covered by the bond or letter of credit. [1961 c.282 §3; 1979 c.284 §176;
1991 c.331 §90] Applicants for licenses shall pay to the State
Department of Agriculture fees as follows:
(1) Every wholesale produce dealer shall pay a fee to be
established by the department not to exceed $100 and, in addition, the
wholesale produce dealer shall pay a fee of $5 for each motor vehicle
used by the wholesale produce dealer in business to transport produce;
but no motor vehicle shall be licensed under the $5 license fee unless
the vehicle is registered and licensed by the Department of
Transportation or by the motor vehicle licensing agency of another state,
in the name of such wholesale produce dealer. If any wholesale produce
dealer carries on such business at more than one establishment, location
or place of business within this state, then a separate application shall
be made and a separate license issued and an additional fee, to be
established by the department not to exceed $100, paid for each separate
establishment, location or place of business.
(2) Every retail produce peddler shall pay a fee to be established
by the department not to exceed $20, which fee entitles the retail
produce dealer to the use in the retail produce business of one vehicle
and, in addition, the retail produce dealer shall pay an additional fee
to be established by the department not to exceed $20 for each additional
vehicle so used; but no motor vehicle shall be licensed under the license
fee to be established by the department not to exceed $20 unless the
vehicle is registered and licensed in the name of the retail produce
peddler by the Department of Transportation or by the motor vehicle
licensing agency of another state or unless the vehicle is used 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 department not to exceed $100. [Amended by 1959 c.431 §4; 1989 c.611
§1] (1) The
State Department of Agriculture may refuse to grant a license, and may
revoke or suspend any license, as the case may require, when it is
satisfied of the existence of any of the following facts:
(a) That fraudulent charges or returns have been made by the
applicant or licensee for the handling, sale or storage of, or for
rendering any service in connection with the handling, sale or storage
of, any produce.
(b) That the applicant or licensee has failed or refused to render
a true account of 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 the condition, quality or quantity of produce received, handled, sold
or stored by the applicant or licensee.
(d) That the applicant or licensee, directly or indirectly, has
purchased for the account of the applicant or licensee produce received
by the applicant or licensee, upon consignment without prior authority
from the consignor, together with price fixed by consignor, or without
promptly notifying the consignor of such purchase; but this does not
prevent any wholesale produce dealer, selling produce on commission, from
taking to account of sales, in order to close the day's business,
miscellaneous lots or parcels of produce remaining unsold, if such
wholesale produce dealer forthwith enters such transaction on the account
of sales of the wholesale produce dealer.
(e) That the applicant or licensee has made fictitious sales or has
been guilty of collusion to defraud any grower of produce.
(f) That any wholesale produce dealer to whom any consignment is
made had reconsigned such consignment to another wholesale produce dealer
for the purpose of receiving, collecting or charging by such means more
than one commission for making the sale therefor for the consignor,
unless by the consent of the consignor.
(g) That the licensee was intentionally guilty of fraud or
deception in the procurement of the license.
(h) That the licensee or applicant has failed or refused to file
with the department a schedule of charges for services in connection with
produce handled 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 or refusal to issue licenses, apply to this section. The State Department of
Agriculture may publish in pamphlet form, or in any other manner at such
times as it deems advisable, a list of all persons licensed under ORS
585.010 to 585.220. The list may include a list of all persons whose
licenses have been refused, revoked or suspended under ORS 585.010 to
585.220.(1) The State Department of Agriculture shall issue license
plates to be attached to all vehicles used in business by any licensed
wholesale produce dealer or retail produce peddler. The license plates
shall be made in the form and manner prescribed by the department, and
shall be issued for the number of vehicles to be used by the applicant in
the produce business and for which application has been made and a fee
paid as provided in ORS 585.010 to 585.220. Every licensee shall keep the
department informed of all motor vehicles used by the licensee in the
business of the licensee and of the number of the ownership certificate
applying to each motor vehicle and the licensee shall notify the
department of all changes in ownership of any such motor vehicle. In case
of a decrease in the number of vehicles for which the licensee is
entitled to use license plates, all excess plates shall immediately be
returned to the department. The returned plates shall be retained by the
department until the end of the license period and may be repossessed by
the licensee upon proof that the licensee is again entitled to use them.
(2) All license plates and all other indicia of the possession of a
license are at all times the property of the State of Oregon. Each
licensee is entitled to the possession thereof only for the duration of
the license, and the department may take possession of the plates or
other indicia on the expiration, suspension or revocation thereof. Any
refusal by a person in possession of such plates or other indicia to
return the same to the department, upon the termination or suspension of
the license under which they were issued, is a violation of ORS 585.010
to 585.220.
(3) No person shall operate any vehicle in the conduct of business
as a wholesale produce dealer or as a retail produce peddler, unless the
license plates provided for in this section are attached to the rear of
the vehicle in plain sight and kept clean and readable. No licensee
under ORS 585.010 to 585.220 shall loan or permit any other person to
have in possession or to use any license certificate or plate issued to
such licensee by the State Department of Agriculture. No person shall
carry, exhibit or use in any manner any license certificate or plate,
provided for by ORS 585.010 to 585.220, which has not lawfully been
issued to such person, or after the license of the person has expired. Every operator
or owner of any vehicle transporting produce on any street or public
highway within this state shall, upon request of any officer, employee or
deputy of the State Department of Agriculture, or upon request of any
state, county or local police officer, answer any questions concerning
any produce being transported, and, if requested, shall sign a statement
covering the answers. (1) Every cash buyer upon
buying any produce 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 authorized representatives of the State Department of
Agriculture. [1959 c.431 §9]Every wholesale produce dealer, upon buying on credit any produce
from any grower, shall promptly make and keep a correct record showing in
detail the following with reference 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.
(1) Every wholesale produce dealer, having received any produce from a
grower thereof for sale upon a commission basis, shall promptly make and
keep a correct record showing in detail the following with reference to
the handling, sale or storage of 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 to inspection 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 with the sale.
(g) Each consignment of produce shall be given a lot number or
other identifying mark. The number or mark shall appear on all sales tags
and on any other essential 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 claims which have been or may be filed by such person selling on
commission, against any person, for overcharges or for damages resulting
from the injury or deterioration 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 consignor of produce for whom such claim or claims
are made.
(2) Every wholesale produce dealer who sells produce on a
commission basis shall retain a copy of all records, including sales
tags, account sales, and other records covering each transaction, for a
period of one year from the date of the transaction. The copy shall at
all times be available for, and open to, the confidential inspection of
the department and the interested consignor or any authorized
representative of either. (1) A copy of
records and accounts of sales of produce, together with remittances in
full of the amount realized by such sale, less the agreed commission and
other charges, shall be delivered to the consignor upon the consummation
of the sale, together with all moneys received by the wholesale produce
dealer in payment for any consignment of produce, less the agreed
commission and other charges, within 10 days after receipt of the moneys
by any wholesale produce dealer who has sold produce on a commission
basis, unless otherwise agreed in writing. The names and addresses of the
purchasers need not be given.
(2) The money returns, if any, collections or damages received by a
person handling produce on commission, for and on behalf of a consignor
of produce by reason of overcharges, damages or deterioration of the
produce by the act or neglect or failure of any person forthwith shall be
paid to the consignor, less charges for collection thereof in accordance
with the schedule of charges filed under ORS 585.010 to 585.220.If there is a dispute or disagreement
between a consignor and a wholesale produce dealer, selling on a
commission basis, at the time of delivery as to condition, quality,
grade, pack, quantity or weight of any lot, shipment or consignment of
produce, the State Department of Agriculture shall furnish, upon the
payment of a reasonable fee therefor by the requesting party, a
certificate establishing the condition, quality, grade, pack, quantity or
weight of the lot, shipment or consignment. The certificate is prima
facie evidence in all courts of this state as to the recitals thereof at
the time the inspection was made.(1) The State
Department of Agriculture shall enforce the provisions of ORS 585.010 to
585.220, and to that end the department has the authority granted in this
section.
(2) The department may investigate and attempt equitably to adjust
controversies between any grower or growers, and any wholesale produce
dealer, retail produce peddler, or any person acting or assuming to act
in the capacity of any of such persons.
(3) The department may take assignments of claims, arising out of
any controversies between the parties named in subsection (2) of this
section, in trust for the assigning grower or growers. All such
assignments shall run to the Director of Agriculture and successors in
office. The Director of Agriculture may, as assignee 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 not bring a suit or
action on any claim until the parties to be sued have been notified of
the assignment of claims and have been given a reasonable opportunity to
make an equitable adjustment thereof with the department. Any claim so
assigned to the director authorizes the director to make any adjustment
thereof which, in the opinion of the director, is equitable. The moneys
received by the department on any claims so assigned to it shall be paid
into the Department of Agriculture Account; and such moneys shall be paid
to the assignor after first deducting any costs and expenses incurred by
the department in the collection of any such claim, and also after
deducting five percent of any sum collected. The five percent deducted
shall be used, together with other moneys collected under the provisions
of ORS 585.010 to 585.220, to pay 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 any violation 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 in the name of the State of Oregon. The
director may act through any authorized officer, employee or deputy of
the department in any proceeding authorized by this section.
(5) The court may award reasonable attorney fees to the director if
the director prevails in an action under subsection (3) of this section.
The court may award reasonable attorney fees to a defendant who prevails
in an action under subsection (3) of this section if the court determines
that the director had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of the
trial court. [Amended by 1981 c.897 §69; 1995 c.696 §31] Copies of
records, inspection certificates and certified reports on file in the
office of the State Department of Agriculture are prima facie evidence of
the matters therein contained. All authorized
officers, employees and deputies of the State Department of Agriculture
shall have, at all times, free and unimpeded access to all places,
buildings, yards, warehouses, markets, storage, transportation facilities
and vehicles in which any produce is kept, stored, handled or transported. The State Department of Agriculture
may make periodic inspections of fruits and produce sold or held for sale
in wholesale and retail channels to verify if there is compliance with
the laws relating to grades, standards, quality and condition of such
commodities. [1959 c.431 §10] The State Department of Agriculture
may make, from time to time, all needful rules and regulations for the
administration of ORS 585.010 to 585.220, and provide the necessary forms
to carry those sections into effect. The rules and regulations shall be
printed in pamphlet form as provided in ORS 561.190.(1) Except for fees paid under ORS 585.050, all
fees received by the State Department of Agriculture pursuant to the
provisions of this chapter shall be paid to the State Treasurer, who
shall place the moneys in the General Fund of the state to the credit of
the Department of Agriculture Account. All such funds paid to the State
Treasurer, or so much thereof as is necessary, shall be a continuing
appropriation from the Department of Agriculture Account and shall be
used for the purpose of carrying out the provisions of this chapter. The
fees paid to the department under ORS 585.050 shall be deposited into the
Department of Agriculture Service Fund, and such funds are continuously
appropriated to the department for the purpose of administering and
enforcing this chapter.
(2) All fines collected pursuant to ORS 585.990 shall go into the
fruit inspection fund of the county where collected if that county has a
fruit inspection fund, otherwise the fines shall go into the general fund
of the county. [Amended by 1979 c.499 §9] In addition to other penalties and
enforcement provisions contained in ORS 585.010 to 585.220 and 585.990,
circuit courts hereby are vested with authority, upon petition by the
Director of Agriculture, to enjoin any violation or threatened violation
of ORS 585.010 to 585.220. No person who assumes or attempts to act
as a wholesale produce dealer or retail produce peddler without a
license, and no wholesale produce dealer handling produce upon a
commission basis, shall do any of the following:
(1) Impose false charges for handling or services in connection
with the account of any grower of such produce.
(2) Fail to account promptly, correctly, fully and properly and to
make settlement therefor as provided in ORS 585.010 to 585.220.
(3) Intentionally make any false or misleading statement or
statements as to market conditions.
(4) Make fictitious sales or be guilty of collusion to defraud the
grower.
(5) Directly or indirectly purchase for the account of the person
or wholesale produce dealer, produce received by the person or wholesale
produce dealer, upon consignment without prior authority from the
consignor, or fail promptly to notify the consignor of such purchases, if
any, on the account of the person or wholesale produce dealer; but this
subsection shall not be construed to prevent any wholesale produce dealer
handling produce upon a commission basis from taking to account of sales,
in order to close the day's business, miscellaneous lots or parcels of
produce remaining unsold, if such wholesale produce dealer forthwith
enters such transaction on account of sales of the wholesale produce
dealer.
(6) Intentionally make any false statement as to the grade,
condition, markings, quality or quantity of produce shipped or packed in
any manner.
(7) Violate any other provision of ORS 585.010 to 585.220.(1) In the absence of a contract
providing otherwise, any wholesale produce dealer who purchases produce
from a grower shall make full payment therefor not later than the 30th
day after the day the wholesale produce dealer takes delivery of the
harvested commodity.
(2) Any wholesale produce dealer who fails to make payment as
required by subsection (1) of this section shall pay, in addition to the
amount due, interest thereon at the rate of one and one-half percent per
month.
(3) In addition to any other remedies provided by law, a grower
injured by a violation of subsection (1) of this section may bring an
action for damages sustained as a result of the violation. In any such
action, the prevailing party shall be allowed, in addition to costs and
disbursements, reasonable attorney fees at trial and on appeal. [1985
c.426 §3](1) Notwithstanding any other provision of law, in the absence of
a contract providing otherwise, any person who purchases produce from a
wholesale produce dealer shall make full payment therefor not later than
the 30th day after the day the person took delivery of the produce.
(2) In addition to any other remedies provided by law, a wholesale
produce dealer injured by a violation of subsection (1) of this section
may bring an action for damages sustained as a result of the violation.
In any such action, the prevailing party shall be allowed, in addition to
costs and disbursements, reasonable attorney fees at trial and on appeal.
[1985 c.426 §4]Duly authorized employees of the State Department
of Agriculture have the power and authority of peace officers for the
purpose of enforcing the provisions of ORS 585.010 to 585.220. Justice
courts have concurrent jurisdiction with circuit courts of this state in
all proceedings to enforce the provisions of ORS 585.010 to 585.220.Violation of any provision of ORS 585.010 to
585.220 is punishable, upon conviction, by a fine of not more than
$1,000, or by confinement in the county jail for not more than one year,
or both. [Subsection (2) of 1957 Replacement Part enacted as 1957 c.454
§14; 1959 c.512 §1]
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