Chapter 126

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). If the contingent financial backing is in the form of a trade credit insurance policy that appears to cover the authorized payments, the department shall file a claim against the policy.

126.72(3) (3) Deductible amount. The deductible amount, for purposes of subs. (1) and (2), is 60 percent 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; 2009 a. 296.

126.73 126.73 Reimbursing payments.

126.73(1) (1) Generally. Except as provided in sub. (2) or (3), 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 contingent financial backing under s. 126.06 (1) 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(3) (3) Trade credit insurance payments. If the department files a claim against a trade credit insurance policy under s. 126.72 (2) and obtains and uses proceeds from the insurance policy to make payments authorized under s. 126.72 (2), the trade credit insurer may demand and collect the amount of those payments from the defaulting contractor.

126.73(4) (4) Subrogation. The department is subrogated to the rights of a claimant who obtains a payment under s. 126.72 (1) or (2) in an amount equal to the payment, against the defaulting contractor and against any party that would otherwise be liable to the claimant for the amount of the default.

126.73 History History: 2001 a. 16; 2003 a. 38; 2009 a. 296; 2017 a. 155.

subch. VIII of ch. 126 SUBCHAPTER VIII

ADMINISTRATION AND ENFORCEMENT

126.78 126.78 Definitions. In this subchapter:

126.78(1) (1) “Contributing contractor” has the meaning given in s. 126.68 (1).

126.78(2) (2) “Depositor” has the meaning given in s. 126.25 (5).

126.78(3) (3) “Grain dealer” has the meaning given in s. 126.10 (9).

126.78(4) (4) “Grain warehouse keeper” has the meaning given in s. 126.25 (9).

126.78(5) (5) “Milk contractor” has the meaning given in s. 126.40 (8).

126.78(6) (6) “Producer agent” means a person who is a producer agent, as defined in s. 126.10 (13), 126.40 (13), or 126.55 (12).

126.78(7) (7) “Vegetable contractor” has the meaning given in s. 126.55 (14).

126.78(8) (8) “Vegetable producer” has the meaning given in s. 126.55 (16).

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.

126.81(1) (1) The department may promulgate rules to do any of the following:

126.81(1)(a) (a) Interpret and implement this chapter.

126.81(1)(b) (b) Modify the license fees and surcharges under s. 126.41 (3).

126.81(1)(c) (c) Specify additional circumstances for denying claims under s. 126.70 (4) (k).

126.81(1)(d) (d) Require a contractor to notify producers and producer agents of the contractor’s license, security, or fund contribution status under this chapter.

126.81(2m) (2m) The department shall promulgate rules to do all of the following:

126.81(2m)(a) (a) Specify license fees and surcharges under ss. 126.11 (4), 126.26 (3), and 126.56 (4).

126.81(2m)(b) (b) Specify fund assessments under s. 126.46 (1).

126.81 History History: 2001 a. 16; 2009 a. 296; 2011 a. 260 s. 80.

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)(a) (a) Contractor financial statements.

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, a rule promulgated under this chapter, or a condition imposed under s. 126.86 (1). 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. In an order under this subsection, the department may disqualify the contractor from the fund pending compliance with the order. 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 percent 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(2)(h) (h) A contractor fails to file a financial statement with the department by the time or in the form required under this chapter.

126.85(2)(i) (i) A contractor fails to pay an amount owed under s. 126.73 within 60 days after the contractor receives a written demand for payment from the department or other person to whom payment is due under s. 126.73.

126.85(3) (3) Hearing on summary order.

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; 2009 a. 296.

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 pay an amount owed under s. 126.73 within 60 days after the contractor receives a written demand for payment from the department or other person to whom payment is due under s. 126.73.

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) (3) Summary action.

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 any of the conditions identified in s. 126.85 (2) exist or otherwise finds that summary action is necessary to prevent a clear and imminent threat of harm to persons protected under this chapter.

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; 2009 a. 296.

126.87 126.87 Court actions.

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) (2) Penalties.

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) (4) Private remedy.

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.