126.71(3)(a)4.
4. A default claim allowed against a contractor who was not a contributing contractor when the default occurred.
126.71(3)(a)5.
5. A default claim allowed against a vegetable contractor who is a processing potato buyer, as defined in
s. 126.55 (10r), if the default claim is related to a default on an obligation that was outstanding when the processing potato buyer's participation in the fund became effective under
s. 126.595 (2).
126.71(3)(b)
(b) The department may not pay any default claim under this chapter, except as provided in
sub. (1) or
(2).
126.71(3)(c)
(c) If the total amount of default claims exceeds the amount available under
s. 126.72, the department shall prorate the available amount among the eligible claimants in proportion to the amount of their allowed claims.
126.71(4)
(4) Effect of payment. A claimant who accepts payment under
sub. (1) or
(2) releases his or her claim against the contractor to the extent of the payment. A payment under
sub. (1) or
(2) does not prevent a claimant from recovering the balance of an allowed claim directly from the contractor.
126.72
126.72
Claims against contributing contractor; payment sources. 126.72(1)(1)
Producer security fund. From the appropriation under
s. 20.115 (1) (w), the department shall make payments authorized under
s. 126.71 (1), up to the deductible amount in
sub. (3).
126.72(2)
(2) Proceeds of contingent financial backing. The department, at the direction of the secretary of agriculture, trade and consumer protection, shall draw on the contingent financial backing acquired under
s. 126.06 to make payments authorized under
s. 126.71 (1), to the extent that those payments exceed the deductible amount in
sub. (3).
126.72(3)
(3) Deductible amount. The deductible amount, for purposes of
subs. (1) and
(2), is 60% of the cash balance in the agricultural producer security fund on the last day of the month preceding the month in which the default occurs.
126.72 History
History: 2001 a. 16;
2003 a. 38.
126.73
126.73
Reimbursing payments. 126.73(1)
(1)
Payments from the fund. The department may demand and collect, from a contractor, any claim amounts that the department pays under
s. 126.72 (1) or under
s. 126.72 (2) with the proceeds of a loan under
s. 126.06 (1) (b) because of the contractor's default.
126.73(2)
(2) Bond payments. A bond surety may demand and collect, from a contractor, any claim amounts that the bond surety pays to the department under
s. 126.72 (2) because of the contractor's default. The bond surety shall provide the department with a copy of each demand under this subsection.
126.73 History
History: 2001 a. 16;
2003 a. 38.
ADMINISTRATION AND ENFORCEMENT
126.78
126.78
Definitions. In this subchapter:
126.78 History
History: 2001 a. 16.
126.80
126.80
Department authority; general. The department shall administer this chapter.
126.80 History
History: 2001 a. 16.
126.81
126.81
Rule-making. The department may promulgate rules to do any of the following:
126.81(1)
(1) Interpret and implement this chapter.
126.81(4)
(4) Require a contractor to notify producers and producer agents of the contractor's license, security, or fund contribution status under this chapter.
126.81 History
History: 2001 a. 16.
126.82
126.82
Investigations. The department may conduct investigations that it considers necessary for the administration of this chapter, including investigations to determine any of the following:
126.82(1)
(1) Whether a contractor complies with this chapter.
126.82(2)
(2) Whether a contractor is able to honor contract obligations when due.
126.82(3)
(3) Whether a contractor has failed to honor contract obligations when due.
126.82(4)
(4) Whether a grain warehouse keeper has sufficient grain on hand to meet the grain warehouse keeper's obligations to depositors.
126.82(5)
(5) The nature and amount of a contractor's storage obligations or other contract obligations.
126.82 History
History: 2001 a. 16.
126.83
126.83
Information. The department may require a contractor to provide information that is relevant to the administration and enforcement of this chapter.
126.83 History
History: 2001 a. 16.
126.84
126.84
Records; confidentiality. 126.84(1)
(1)
Public records exemption. The following records obtained by the department under this chapter are not open to public inspection under
s. 19.35:
126.84(1)(b)
(b) A contractor's purchase, storage, or procurement records.
126.84(2)
(2) Use of records in court or administrative proceedings. Notwithstanding
sub. (1), the department may introduce any information obtained under this chapter in a court proceeding or administrative contested case, subject to any protective order that the court or administrative tribunal determines to be appropriate.
126.84 History
History: 2001 a. 16.
126.85
126.85
Remedial orders. 126.85(1)(1)
General. The department may, by special order, require a contractor to remedy a violation of this chapter or a rule promulgated under this chapter. The department may order the contractor to take specific remedial actions, including actions to remedy deficiencies or to prevent losses to persons protected under this chapter. Except as provided in
sub. (2), the department shall give the contractor notice and an opportunity for hearing before the department issues an order.
126.85(2)
(2) Summary order. The department may issue an order under
sub. (1) without prior notice or hearing if the department finds that the order is necessary to prevent a clear and imminent threat of harm to persons protected under this chapter. Conditions indicating a clear and imminent threat of harm include the following:
126.85(2)(a)
(a) A contractor fails to pay producers according to this chapter or according to the contractor's contracts with producers.
126.85(2)(b)
(b) A contractor fails to file replacement insurance within the time required under this chapter.
126.85(2)(c)
(c) A contractor fails to file security according to this chapter, or in response to the department's demand under this chapter.
126.85(2)(d)
(d) A contractor fails to pay a fund assessment when due.
126.85(2)(e)
(e) A vegetable contractor fails to pay vegetable producers by January 31 for vegetables delivered by December 31 of the previous year, except as authorized in a deferred payment contract.
126.85(2)(f)
(f) A grain warehouse keeper fails to return grain to depositors upon demand, as required under
s. 126.34 (4).
126.85(2)(g)
(g) A grain warehouse keeper fails to maintain adequate grain inventory as required under
s. 126.34 (3), and at least one of the following applies:
126.85(2)(g)1.
1. The amount of the deficiency exceeds 10,000 bushels or 10% of the grain warehouse keeper's obligations to depositors, whichever amount is less.
126.85(2)(g)2.
2. The grain warehouse keeper fails to correct the deficiency within 15 days after receiving the department's written notice that a deficiency exists.
126.85(3)(a)(a) A contractor named in a summary order under
sub. (2) may, within 10 days after receiving the order, request a hearing on the order. The department shall hold an informal hearing as soon as possible after receiving a hearing request, but not later than 10 days after receiving the hearing request, unless the contractor waives the informal hearing or agrees to hold it at a later date. If the matter is not resolved at the informal hearing, the department shall hold a contested case hearing under
ch. 227 as soon as reasonably possible.
126.85(3)(b)
(b) A hearing request under
par. (a) does not automatically stay a summary order. The department may stay a summary order pending hearing.
126.85 History
History: 2001 a. 16.
126.86
126.86
License actions. 126.86(1)(1)
General. The department may for cause deny, suspend, revoke, or impose conditions on a contractor's license, as provided in
s. 93.06 (7) and
(8). Cause may include any of the following:
126.86(1)(a)
(a) The contractor fails to comply with this chapter or a rule promulgated under this chapter.
126.86(1)(b)
(b) The contractor fails to comply with an order that the department issues under this chapter.
126.86(1)(c)
(c) The contractor fails to provide relevant information that the department requests under this chapter or falsifies information provided to the department.
126.86(1)(d)
(d) The contractor fails to file a financial statement, security, fees, or assessments required under this chapter, or fails to meet other requirements for licensing.
126.86(1)(e)
(e) The contractor fails to honor contract obligations to persons who are authorized to file default claims under
s. 126.70 (1).
126.86(1)(f)
(f) The contractor fails to reimburse the department, within 60 days after the department issues a reimbursement demand under
s. 126.73 (1), for the full amount that the department pays to claimants under
s. 126.72 (1) or under
s. 126.72 (2) with the proceeds of a loan under
s. 126.06 (1) (b) because of the contractor's default.
126.86(1)(g)
(g) The contractor fails to reimburse a bond surety, within 60 days after the bond surety issues a reimbursement demand under
s. 126.73 (2), for the full amount that the surety pays to the department under
s. 126.72 (2) for the benefit of claimants affected by the contractor's default.
126.86(2)
(2) Hearing on license action; general. Except as provided in
sub. (3), the department shall give a contractor notice and an opportunity for hearing before the department suspends, revokes, or imposes conditions on a license held by the contractor.
126.86(3)(a)(a) The department may, without prior notice or hearing, summarily suspend, revoke, or impose conditions on a license held by a contractor if the department finds that summary action is necessary to prevent a clear and imminent threat of harm to persons protected under this chapter. Conditions indicating a clear and imminent threat of harm include those identified in
s. 126.85 (2).
126.86(3)(b)
(b) A contractor who is the subject of a summary action under
par. (a) may, within 10 days after receiving notice of that action, request a hearing on the action. The department shall hold an informal hearing as soon as possible after receiving a hearing request, but not later than 10 days after receiving the hearing request, unless the contractor waives the informal hearing or agrees to hold it at a later date. If the matter is not resolved at the informal hearing, the department shall hold a contested case hearing under
ch. 227 as soon as reasonably possible.
126.86(3)(c)
(c) A request for hearing under
par. (b) does not automatically stay a summary action under
par. (a). The department may stay a summary action pending hearing.
126.86 History
History: 2001 a. 16;
2003 a. 38.
126.87(1)(1)
Injunction. The department may petition the circuit court for an ex parte temporary restraining order, a temporary injunction, or a permanent injunction to prevent, restrain, or enjoin any person from violating this chapter, any rule promulgated under this chapter, or any order issued under this chapter. The department may seek this remedy in addition to any other penalty or remedy provided under this chapter.
126.87(2)(a)(a) A person who violates this chapter, a rule promulgated under this chapter, or an order issued under this chapter is subject to a forfeiture of not less than $250 nor more than $5,000 for each violation.
126.87(2)(b)
(b) A person who intentionally violates this chapter, a rule promulgated under this chapter, or an order issued under this chapter may be fined not more than $10,000 or imprisoned for not more than one year in the county jail or both.
126.87(4)(a)(a) A person whose claim is allowed under
s. 126.70 may bring an action against the contractor to recover the amount of the allowed claim, less any recovery amount that the department pays to the claimant under
s. 126.71. In any court action under this subsection, the claimant may recover costs including all reasonable attorney fees, notwithstanding
s. 814.04 (1). This subsection does not limit any other legal cause of action that the claimant may have against the contractor.
126.87(4)(b)
(b) A claim allowed under
s. 126.70 has the same priority in an insolvency proceeding or creditor's action as a claim for wages, except as otherwise provided by federal law.
