§ 20-59-205 - Right of review.
20-59-205. Right of review.
(a) It shall be the duty of the State Board of Health and it is authorized and empowered through its constituted officers and agents as set out in this section to perform the following acts. However, any aggrieved party shall have the right to apply to the circuit court in the county of his or her residence for a review of any summary action on the part of the board or its agents and for this purpose service of process upon the Director of the Department of Health at any place in this state shall constitute valid service in the application for review:
(1) Inspection of Plants. To inspect or cause to be inspected, as often as may be deemed practicable, all dairy products plants or any other places where dairy products are produced, manufactured, frozen, processed, kept, handled, stored, or sold within this state;
(2) Production and Sale Prohibited. To prohibit the production and sale of unclean, adulterated, unwholesome milk, cream, or other dairy products;
(3) Condemnation for Food. To condemn for food purposes by denaturing with harmless coloring all unclean or unwholesome dairy products wherever they may find those products;
(4) Samples. To take samples anywhere of any dairy products or imitation thereof and cause the samples to be analyzed or satisfactorily tested according to the method of the Association of Official Agricultural Chemists in force at the time. The analyses or tests shall be preserved and recorded;
(5) Right of Entry. To enter during business hours all dairy products plants or other places where dairy products are manufactured, produced, frozen, processed, stored, sold, or kept for sale or transportation in order to perform their official duties;
(6) Price of Cream or Butterfat. (A) To require that no person, firm, corporation, or association shall buy or offer to buy cream or butterfat for butter-making purposes without displaying the price to be paid for cream or butterfat according to grade of cream.
(B) The price shall be posted and displayed continuously during the business hours of the person, firm, or corporation buying cream, and the price, according to grade of cream, shall include all premiums and bonuses, if any, in letters and figures not less than two inches (2'') in height in such manner or place so that the price posted shall be plainly visible from the street in front of the building or place in which the purchase is made.
(C) It shall be deemed a violation hereof if there is:
(i) A failure on the part of the person, firm, corporation, or association, its agent, servant, or employee, to post the prices; or
(ii) A buying of cream or butterfat at a price different from that which is posted.
(D) All persons, firms, corporations, or associations, their agents, servants, or employees shall keep a record in their respective cream stations of the time and date on or at which changes in prices are made and posted.
(E) However, nothing in this subdivision shall be construed as to forbid or prevent:
(i) Incorporated cooperative associations from paying annually earned patronage dividends according to the statutes and decrees under which they are organized; or
(ii) Corporations paying annual dividends according to the statutes and decrees under which they are incorporated;
(7) Subpoenas. (A) To issue subpoenas requiring the appearance of witnesses and the production of books, papers, reports, and records before the board or the director, in all cases where sufficient evidence of violation of this subchapter is filed with the director. The director shall have power to administer oaths with like effect as is done in courts of law in this state.
(B) It shall be the duty of any circuit court or the judge thereof upon application to issue an attachment for the witnesses and compel their attendance before the board or the director, to give testimony upon such matters as shall be lawfully required by the official. The court or judge shall have power, in cases of refusal, to punish for contempt, as in other cases of refusal to obey the orders and process of the court;
(8) Tests. (A) To test milk, cream, and other dairy products for the purpose of ascertaining the percentages of butterfat or other ingredients contained therein.
(B) If the director or any of his deputies shall find upon testing that there is a variance of more than one percent (1%) of butterfat in a cream test or two-tenths of one percent (2/10 of 1%) in a milk test between his or her test and that made by any person engaged in buying or selling milk, cream, or other dairy products for the basis of payment, the director or deputy shall cause his or her test to be verified and substantiated by a recognized laboratory. If the chemist shall find that the test made by the director or deputy is correct, the test thus made and verified shall be admitted in evidence in all prosecutions for violation of this section. The director is authorized to recall and cancel the testor's permit of the person thus making false tests or to bring criminal action against the person, or both;
(9) Carrier Regulations. (A) To forbid and prevent any common carrier to neglect or fail to remove or ship from its depot, within twenty-four (24) hours of its arrival there for shipment, any milk, cream, or other dairy products left at that depot for transportation.
(B) Railway and express companies and other common carriers shall provide and utilize sanitary ventilated rooms or canvas covers at depots or transfer points for the protection from extreme temperatures, of all milk, cream, and ice cream received for shipment, and not allow merchandise of a contaminating nature to be stored on or with the cream.
(C) Truck route operators shall protect milk and cream from extreme temperatures and unsanitary conditions during transportation by proper covering and separation to prevent contamination from other transportation products;
(10) Cans or Packers at Depot. To forbid and prevent milk or cream cans or ice cream packers to remain at a railroad or truck depot longer than forty-eight (48) hours from the date of their arrival, excepting individual farm shipments;
(11) Branded Containers. (A) To forbid and prevent the use of any branded or registered cream can or milk can, ice cream, or frozen dessert packer or container for any other purpose than the handling, storing, or shipping of milk, cream, or frozen dessert.
(B) It shall be unlawful for any person or carrier other than the rightful owner, except with written consent of the owner thereof, to use, transport, or deliver any milk or cream can, whether filled with cream or milk or empty, or frozen dessert container, whether filled with frozen dessert or empty, to other than the rightful owner if the receptacle is marked with the brand or trademark of the owner, the brand or trademark being registered according to law with the Secretary of State;
(12) Alteration of Brand -- Return of Containers. (A) To forbid and prevent any person other than the rightful owner thereof to in any way alter the mark or brand or ownership identification on any milk or cream can or other dairy receptacle without written consent of the owner.
(B) Every person, firm, or corporation purchasing frozen desserts in cans and shipping bags which are to be returned to the manufacturer shall cause the cans to be washed and cleaned as soon as emptied, and the bags stored in a dry place, or returned at once;
(13) Samples of Frozen Desserts. To take samples of frozen desserts, ice cream, or other frozen dairy products for official test at the factory where desserts are frozen or from an unopened container of frozen desserts or other frozen dairy products, according to a method approved by the American Association of Agricultural Chemists or the American Dairy Science Association;
(14) Containers Used for Other Purposes. To forbid and prevent the sale or storage of milk, cream, or other dairy products in milk or cream cans which have previously contained kerosene, gasoline, turpentine, oil, or products or by-products of a similar nature; and
(15) Dairy Product Definitions and Standards of Identity and Labeling Requirements. (A) The board shall adopt the definitions and standards of identity for milk, milk products, cheeses, and frozen desserts found at 21 C.F.R., Parts 131, 133, and 135, and shall adopt any amendments or additions made thereunder. The board may adopt definitions and standards of identity of milk products, cheeses, and frozen desserts if they are not found at 21 C.F.R. All packages enclosing milk, milk products, cheeses, and frozen desserts shall be labeled in accordance with the federal Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act, and regulations promulgated thereunder.
(B) Provided, that the board shall not change, correct, adopt, or promulgate rules or regulations or other health code standards pertaining to the dairy industry of Arkansas, as defined in this section, until such changes have been reviewed by active Arkansas milk producers marketing agents, herein referred to as the "agents", and by the Arkansas Dairy Products Association, hereinafter referred to as the "association", in regular or especially called meetings of the agents and the association, or the governing bodies thereof. However, if meetings of the agents and the association are not held within thirty (30) days after a written notice by the board of intent to change, correct, adopt, or promulgate rules and regulations, the review of the agents and the association shall be deemed waived.
(C) Notice as required by this subsection shall be given in writing by ordinary mail, or be hand delivered, to the agents and to the director of the association.
(D) The Director of the Department of Health or the board may change, correct, adopt, or promulgate rules and regulations pertaining to the dairy industry of Arkansas in times of emergency or natural disaster without notice to the agents and the association.
(E) As used in this subchapter, the term "dairy industry of Arkansas" means Grade "A" milk plants, milk manufacturing plants, ice cream plants, milk producers, milk producer-distributors, milk haulers, milk distributors, dairy farms, receiving stations, and transfer stations.
(b) Nothing in this subchapter shall be construed to deprive any city of the first class or city of the second class of any of its police powers now or hereafter granted.
(c) Nothing in this section or in any other section of this subchapter shall be construed as authorizing or directing in any fashion the board to assume, to take over, or to discharge exclusively any of the functions and duties or responsibilities customarily performed by cities of the first class or cities of the second class, operating under and enforcing an ordinance approved by the Department of Health dealing with dairy or other sanitary milk inspection work or the bacteriological sampling of milk.
(d) The duties discharged under the terms of this subchapter shall be discharged insofar as is practicable and reasonable in cooperation with the municipal authorities wherever such authorities exist.