Untimely claims disallowed.
Claims filed after the deadline date specified under par. (b)
shall be disallowed unless the department waives the deadline date for good cause shown. A claim shall be disallowed if payment was due more than 60 days before the date on which the first written notice of default was received by the department.
Notice and hearing.
The department shall hold a public hearing on its proposed order under par. (c)
. A notice of hearing shall be issued to each person who is required to receive a copy of that order. The notice of hearing shall comply with s. 227.44
. The notice of hearing may require affected parties to file objections to the proposed order, if any, in writing before the date of hearing. The hearing examiner may hold a prehearing conference before the hearing, and may reschedule or continue the hearing as necessary. The hearing and related proceedings shall be conducted under ch. 227
Final order after hearing.
Before issuing its final decision and order, the department shall follow the procedure prescribed under s. 227.46
, except that if after the hearing under par. (e)
there are no objections to the proposed order under par. (c)
the department may adopt the proposed order as the final decision and order of the department, without further notice or hearing.
Interest on claims.
If the department's proposed or final order allows a producer claim, the order shall also require the contractor to pay interest on the claim, at a rate determined by the department by rule, computed from the date on which payment was first due.
(10) Payment of secured claims.
If the department issues a final order allowing producer claims under sub. (9)
, the department may convert any security held by the department under sub. (8)
and may apply the proceeds to pay the allowed claims. The department shall distribute available funds to the producer claimants according to the final order allowing claims, on a proportionate basis according to the amount of each producer's allowed claim. If funds exceed allowed claims, the excess shall be returned to the person who filed the security with the department.
(11) Department may collect producer claims.
The department may demand and receive payment of claims allowed under sub. (9)
on behalf of producers and may commence an action in court to recover allowed claims on behalf of producers. Any amounts recovered by the department shall be distributed to represented producer claimants on a proportionate basis, according to the amount of each producer's allowed claim. The department may settle any producer claim with the consent of the producer and may decline to represent a producer who does not agree to a settlement recommended by the department. This subsection does not prohibit any producer from proceeding independently, under sub. (12)
, to recover an unpaid claim.
(12) Demand for payment; judgment lien.
If the department issues a final order allowing producer claims under sub. (9)
, the department or any producer may demand payment of an allowed claim from the contractor, and from any other person who is obligated under the department's order. If the contractor does not pay the claim within 30 days after the demand is served on the contractor, the department or producer may file the department's final order with the clerk of circuit court in any county of this state. The clerk of circuit court shall enter the order in the judgment and lien docket. Upon being entered, the order becomes a judgment lien against the real property, in that county, of the contractor or person obligated under the order.
(13) Priority of producer claims.
In any insolvency or creditor's proceeding in court against a contractor, the unpaid claim of a producer under this section has the same priority as a claim for wages under s. 109.09 (2)
. Producer claims have priority over the unsecured claims of any owner, officer, agent, partner, member, manager, stockholder or family member of the contractor. Producer claims shall be given the same priority as a claim for wages under s. 109.09 (2)
in federal bankruptcy proceedings, to the extent permitted by federal law. This subsection does not impair any other lien, security or priority for a producer claim.
(14) Operator liability for claims not paid by subsidiary or affiliate.
If a contractor is a subsidiary or affiliate of an operator, the operator is liable to a producer for the amount of any unpaid claim under this section if the contractor fails to pay the producer according to the terms of the procurement contract and this section.
Grading procedures and grade standards.
If under a procurement contract the amount received by the producer depends on the grade of the vegetables, the vegetables shall be graded in compliance with all of the following:
Standard procedures established by the department by rule.
Uniform grade standards established by the department by rule, unless alternative grade standards are clearly specified in writing in the procurement contract. Grade standards adopted by the department shall conform to grade standards adopted by the federal department of agriculture under 7 USC 1621
If under any procurement contract there is a payment deduction for tare, tare shall be determined according to procedures established by the department by rule.
Price-fixing not permitted.
This subsection does not fix or regulate the price paid for any vegetable.
(16) Records; inspection by department.
A contractor shall keep copies of all written procurement contracts, and a current record of all liabilities to producers and payments to producers. Records and contracts under this subsection shall be kept for a period of 3 years, and shall be made available for inspection and copying by the department upon request.
The department may promulgate rules to implement and administer this section.
(18) Summary order requiring payment on delivery.
If the department has reasonable grounds to believe that a contractor does not meet the minimum financial standards under sub. (7)
, and does not have adequate security on file under sub. (8)
, the department may issue a summary special order requiring the contractor to make payment on delivery for all vegetables. A summary special order shall set forth the specific basis for the order. The order shall remain in effect until the contractor meets the financial standards under sub. (7)
or files adequate security under sub. (8)
. A person adversely affected by a special order under this section shall be given a prompt hearing before the department upon request, under ch. 227
The department may summarily suspend the contractor's registration certificate when necessary to prevent clear and imminent harm to producers if the department has reasonable grounds to believe that a contractor has failed to make payment on delivery for vegetables, procured from producers, contrary to any of the following:
Procedure for suspension.
A summary suspension order under this subsection shall set forth the specific basis for the order. A person adversely affected by a summary suspension order under this subsection may request a hearing before the department. The request must be made within 10 days after the suspension's date of service. The department shall conduct a hearing within 10 days after receipt of a request. A request for a hearing does not stay the effect of a summary suspension order, unless the department orders a stay.
(20) Private remedy.
In addition to any other remedy, if a producer sustains a monetary loss as a result of a violation of this section by a contractor, including a failure by the contractor to pay a liability to a producer when due, the producer may bring an action and may recover the amount of the producer's proven damages, together with costs, including all reasonable attorney fees, notwithstanding s. 814.04 (1)
(21) Restraint of trade not permitted.
This section does not authorize any restraint of trade which is prohibited under state or federal law.
Any person who violates this section or any rule promulgated or order issued under this section may be required to forfeit not less than $100 nor more than $10,000. Notwithstanding s. 165.25 (1)
, the department may commence an action to recover a forfeiture under this paragraph.
Fine or imprisonment.
Any person who intentionally violates this section or any rule promulgated or order issued under this section shall be fined not less than $100 nor more than $10,000 or imprisoned for not more than one year in the county jail or both for each violation.
Livestock production contracts. 100.04(1)
In this section, "livestock" means swine, cattle, poultry, sheep, goats or farm-raised deer, as defined in s. 95.001 (1) (a)
(2) Required contract terms.
Every written contract under which livestock owned by one party is possessed by another party for breeding, feeding or the production of animal products shall set forth, in clear language, the manner in which any payments received because of the destruction of the livestock due to disease, fire or other unanticipated cause shall be divided between the party owning the livestock and the party possessing the livestock.
(3) Responsible party.
The party who drafts or otherwise provides the text of a written contract described in sub. (2)
is responsible for including language that fulfills the requirement of sub. (2)
(4) Resolution of disputes.
If a written contract described in sub. (2)
does not include language that fulfills the requirement of sub. (2)
and one of the parties to the contract begins an action claiming an interest in payments received because of the destruction of livestock, the court shall divide the payments among the parties in an equitable manner.
History: 1995 a. 210
Butter and cheese manufacturers; accounts accessible. 100.05(1)(1)
No operator of a butter factory or cheese factory wherein the value of the milk or cream delivered is determined by the sale of the product manufactured shall use or allow any other person, unless the other person is entitled to the benefit thereof, to use any milk or cream brought to the operator, without the consent of the owner thereof.
The operator of a butter or cheese factory wherein the value of the milk or cream delivered is determined by the sale of the product manufactured shall keep or cause to be kept a correct account of the amount of milk or cream received daily, and of the number of pounds of butter, and the number and style of cheese made each day, and of the number of cheese cut or otherwise disposed of and the weight of each, and the number of pounds of whey cream sold, with the test.
The account kept under sub. (2)
shall be open to the inspection of any person furnishing milk to the operator and to the department, its chemists, assistants, inspectors and agents.
History: 1993 a. 492
; 1995 a. 225
Wisconsin cheese logotype.
The department shall design an official logotype appropriate for affixation to and display in connection with natural cheese meeting quality standards established by the department and manufactured in this state entirely from milk which is produced under standards which are equal to or greater than standards established under s. 97.24
and rules adopted under s. 97.24
or under minimum sanitary and quality standards prescribed under s. 97.52
and rules adopted under s. 97.52
. The design shall consist of an outline of the boundaries of the state and the words "100% Wisconsin Cheese" and such other specifications as the department deems appropriate. Nothing in this section shall prohibit the use of other appropriate labels or logotypes.
History: 1975 c. 323
; 1977 c. 157
Dairy licenses; financial condition. 100.06(1)(b)
"Balance sheet" means a statement of assets, liabilities and equity on a fixed date.
"Cash flow to debt service ratio" means the result obtained by dividing the total of net income plus noncash expenses plus interest expense by the total of interest expense plus current maturities of long-term debt.
"Current assets" means cash and assets, including trade or investment items, which may be readily converted into cash in the ordinary course of business within one year from the date of the balance sheet.
"Current liabilities" means liabilities which are due and payable within one year from the date of the balance sheet.
"Equity" means the excess of total assets over total liabilities.
"Liability" means an obligation to pay money or other assets or to render a service to another person either now or in the future.
"Milk producer" means any person who owns or operates a dairy farm, and sells or distributes milk produced on that farm, directly or through a marketing agent under a written agency contract or such a marketing agent.
No person may operate a dairy plant and no license therefor shall be issued unless he or she shall have first complied with the requirements of this section and satisfied the department that his or her financial condition is such as to reasonably assure prompt payment to milk producers for the milk to be purchased by him or her as and when the same becomes due and payable. The requirements of this section also apply to any dairy plant out of state that receives milk from milk producers in this state, to the same extent as if it were a dairy plant located in this state, except that such an out-of-state dairy plant need not be licensed in this state.
The department shall require the applicant to file a financial statement of his or her business operations and financial condition that meets the requirements of par. (d)
. The licensee, during the term of his or her license, may be required to file such statements periodically. All such statements shall be confidential and shall not be open for public inspection. The department may require such statements to be certified by a public accountant. Such statements and audits, when made by the department, shall be paid for at cost.
A dairy plant shall submit to the department a financial statement at the end of each quarter of its fiscal year.
An applicant or licensee who does not meet all of the following minimum financial standards shall file with the department a bond or other security acceptable to the department:
His or her ratio of current assets to current liabilities shall be at least 1.25 to 1.0.
He or she shall have equity equal to at least 35% of total assets.
He or she shall have a cash flow to debt service ratio of at least 1.5 to 1.0.
In all cases where it appears that the financial condition of the applicant or of the licensee is not adequate to reasonably assure payment when due for the milk, to be purchased by him or her, the department may require any of the following:
The filing of a bond or other security acceptable to the department that is payable to the department for the benefit of milk producers who would otherwise suffer because of the default of the licensee in the payment for milk.
The filing of an agreement providing for the complete control over all manufactured or processed milk and dairy products by a trustee to be selected at least annually by the milk producers. Such trustee shall make and file a trustee's bond and contracts signed by the operator and the purchaser of the dairy products requiring that payment for all such products sold be made to him or her as trustee. Such trustee shall maintain a separate bank account for that purpose and shall at least annually render a true and correct account of his or her dealings to the department and to the milk producers.
That the licensee shall receive no milk on credit after the 5th day of any month unless at least 90% of the value of the milk delivered during the first 15 days of the preceding month shall have been paid, nor after the 20th day of any month unless the value of all of the milk delivered during the previous month shall have been paid in full; provided that when payment is based on the value of Swiss cheese manufactured from the milk so delivered, an extension of 2 months during which the product is held for curing shall be allowed if the manufactured product is the property of the milk producers or if the proceeds from the sale thereof are made payable to and distributed by a banking institution.
First monthly payment.
A dairy plant operator's payment to a milk producer for milk received from that milk producer during the first 15 days of the month shall:
Be an estimated price that is at least 80% of the class III price published by the regional federal milk market administrator for the month before the month in which the milk is received, or 80% of the price originally contracted for by the dairy plant operator and the milk producer, whichever is greater.
Second monthly payment.
A dairy plant operator shall pay a milk producer the balance due on the actual price for all milk received from that milk producer during the month before the 19th day of the following month.
All dairy plant operators shall inform milk producers delivering milk of the financial basis on which the license was issued including the type and amount of security filed under this section by statement in writing to each milk producer patron at least once every 6 months.
No person may receive milk which will increase the amount owed from him or her beyond the amount represented as a basis for the issuance of a license without first notifying the department.
Any milk producer injured by the breach of any obligation under this section may file with the department a verified proof of claim. Upon receipt of such claim or any other evidence of default, the department, by order, may require all interested creditors to file their verified proofs of claim before a certain date or be barred from participating in any recovery made by the department. Notice of the entry of such order shall be given by posting a copy thereof on the premises described in the license and by publication of a class 3 notice, under ch. 985
, in the affected area. The date of last insertion shall not be less than 30 days prior to the last date for the filing of such claims. The department shall make the necessary audit and by order allow or disallow all claims presented.
The licensee or trustee, or surety or sureties of either of them, shall pay the interest on any claim that the department allows unless the claimant has waived the payment of that interest in writing. The interest shall accrue from the first day of the breach of the obligation under this section for which the verified claim is filed until full payment of the allowed claim is made. The department, by rule, shall establish the interest rate that applies to any claimant except that if the claimant has contracted the interest rate in writing with the licensee or has specified the interest rate in a written confirmation of purchase delivered to the licensee within a reasonable time of purchase to which interest rate the licensee did not object in writing within 10 days of receipt of that confirmation, the interest rate in the contract or confirmation shall apply to the claimant under this subsection.
Notice of allowance or disallowance and interest and request for the payment within 30 days of the claims allowed shall be sent to the principal and surety by registered mail. The department may demand, collect and receive from the licensee or the trustee, or from the surety or sureties of either of them, the amount determined to be necessary to satisfy such claims, plus interest.
The department may commence an action for the purpose of collecting claims, plus interest, in the circuit court of the county in which the licensed plant is located. Upon receipt of the money to be applied to the satisfaction of such claims plus interest as provided in this section, the department shall make distribution to the claimants in accordance with the order allowing claims plus interest, in full or proportionally, as the case may be.
No claims for the purchase price of any milk the value of which was due and payable more than 30 days prior to the date the first written notice of default is received by the department, nor claims covering transactions wherein the seller has granted to the licensee any voluntary extension of credit, shall be allowed or paid under this section.
When any dairy plant shall employ or retain a sales agent or commission dealer to market and distribute its dairy products, and such sales agent or commission dealer shall sell such dairy products to a dairy products dealer, such dairy products dealer shall directly remit or transmit all moneys due thereunder to such dairy plant operator or to the trustee thereof, as the case may be. The dairy plant shall be responsible for the payment of any commission or salary that may be due to such sales agent or commission dealer. Such payment by the dairy products dealer shall be considered as in full release, payment and discharge of any obligation thereunder.
Compliance with this section shall be an additional requirement for the license and noncompliance shall be ground for denial, suspension or revocation of license, under s. 97.20
. This subsection does not apply to any dairy plant, as defined in s. 97.20 (1) (a)
, operated by this state.
The whole claim of any milk producer against any licensee under s. 97.20
on account of milk sold or delivered to such licensee and any judgment therefor shall be entitled to the same preference in any insolvency or other creditor's proceedings as is given by any law of this state to claims for labor. One claim may be filed for any number of milk producers and when so filed the preference shall be allowed on the amount due each milk producer. Such preference shall also be given in bankruptcy proceedings to the extent permitted by the federal law. This section shall not affect or impair any other lien, security or priority for said claim or judgment.
The protection to milk producers afforded by this section shall be available to the milk producers of any state selling milk to any dairy plant licensed in this state.
Milk producer security fee requirement. A dairy plant operator shall pay a fee that, unless otherwise established by the department by rule, is 0.1 cent for each 100 pounds of milk that are received by the dairy plant operator. The dairy plant operator shall pay the fee to the department to fund the milk producer security program established under this section. The dairy plant operator shall pay to the department the fee on each month's milk deliveries on or before the 18th day of the following month. No dairy plant operator may charge to or collect from a milk producer from whom the dairy plant operator receives milk the fee that the dairy plant operator pays under this paragraph. This subsection applies to an operator of a dairy plant that is located outside this state if the operator purchases milk that is produced on a dairy farm located in this state.
The department could find an implied contract that a dairy plant would pay producers of milk a competitive price and that when less was paid the difference was to be made up from the security funds of the producer. Columbus Milk Producers v. Dept. of Agriculture, 48 W (2d) 451, 180 NW (2d) 617.
Milk payments; audits.