258-C - Granting and revoking licenses.
§ 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 onaccount 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 thecommissioner 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.