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As Passed by the Senate
122nd General Assembly
Regular Session
1997-1998 | Am. Sub. H. B. No. 425 |
REPRESENTATIVES THOMPSON-HAINES-DAMSCHRODER-OPFER-HOUSEHOLDER-
KREBS-GARCIA-JOHNSON-BRADING-REID-VESPER-BOGGS-
CORE-OLMAN-HARRIS-METZGER-LEWIS-SALERNO-SAWYER-
SENATORS WHITE-GAETH-LATTA-CARNES-GARDNER
A BILL
To amend sections 926.01, 926.021, 926.05, 926.06, 926.10,
926.16, 926.18, 926.19, 926.29, 926.30, 926.32, 926.99, and 4513.32 and
to enact sections 926.051, 926.36, and 5577.042 of the Revised Code to
change the definition of an agricultural
commodity handler, to
increase the total net worth that an applicant for an
agricultural commodity handler's license must maintain, to
increase the penalty for engaging in agricultural commodity
handling without a license, to make
other revisions to the
law governing agricultural commodity
handling, to permit certain pickup trucks and straight trucks to tow at a
speed not exceeding 25 miles per hour not more than two vehicles carrying
agricultural produce from the farm to a local place of storage, and, except
during the
months of February and March, to allow farm and log
trucks and farm machinery, under prescribed circumstances, to exceed by no
more than five per cent the
established motor vehicle weight limits on highways and bridges that are not
part of the
interstate system and are not subject to reduced weight limits.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 926.01, 926.021, 926.05, 926.06,
926.10, 926.16, 926.18, 926.19, 926.29, 926.30, 926.32,
926.99, and 4513.32 be amended and sections 926.051, 926.36, and 5577.042 of
the Revised Code be
enacted to
read as follows:
Sec. 926.01. As used in this chapter:
(A) "Agricultural commodity" means barley, corn, oats,
rye, grain sorghum, soybeans, wheat, sunflower, speltz, and OR
any
other agricultural crop which the director of agriculture may
designate by rule. "Agricultural commodity" does not mean any
grain that is purchased for sale as seed.
(B) "Agricultural commodity handling" or "handling" means:
(1) Engaging in or participating in the business of
purchasing an agricultural commodity for sale, resale,
processing, or for any other use in THE FOLLOWING volumes
exceeding ten:
(a) IN THE CASE OF PURCHASES MADE FROM PRODUCERS, MORE THAN
THIRTY thousand bushels annually;
(b) IN THE CASE OF PURCHASES MADE
FROM AGRICULTURAL COMMODITY HANDLERS, MORE THAN ONE HUNDRED
THOUSAND BUSHELS ANNUALLY;
(c) IN THE CASE OF TOTAL PURCHASES
MADE FROM PRODUCERS COMBINED WITH TOTAL PURCHASES MADE FROM
HANDLERS, MORE THAN ONE HUNDRED THOUSAND BUSHELS
ANNUALLY.
(2) Operating a warehouse as a bailee for the receiving,
storing, shipping, or conditioning of an agricultural commodity;
(3) Receiving into a warehouse an agricultural commodity
purchased under a delayed price agreement;
(4) PROVIDING MARKETING FUNCTIONS, INCLUDING STORAGE,
DELAYED PRICE MARKETING, DEFERRED PAYMENT, FEED AGREEMENTS, OR
ANY OTHER MARKETING TRANSACTION WHEREBY CONTROL IS EXERTED OVER
THE MONETARY PROCEEDS OF A PRODUCER'S AGRICULTURAL COMMODITIES
BY A PERSON OTHER THAN THE PRODUCER.
(C) "Agricultural commodity handler" or "handler" means
any person who is engaged in the business of agricultural
commodity handling. Any "AGRICULTURAL COMMODITY HANDLER" OR
"HANDLER" DOES NOT INCLUDE A person whose purchases of all
agricultural commodities do not exceed ten thousand bushels
annually and who does not handle agricultural commodities as a
bailee is not an AND WHO PURCHASES AGRICULTURAL COMMODITIES IN THE
FOLLOWING VOLUMES:
(1) THIRTY THOUSAND OR FEWER BUSHELS ANNUALLY FROM PRODUCERS;
(2) ONE HUNDRED THOUSAND OR FEWER BUSHELS ANNUALLY FROM agricultural
commodities handler COMMODITY HANDLERS.
A PERSON WHO DOES NOT HANDLE AGRICULTURAL COMMODITIES
AS A BAILEE AND WHO ANNUALLY PURCHASES THIRTY THOUSAND OR FEWER
BUSHELS OF AGRICULTURAL COMMODITIES FROM PRODUCERS AND ONE
HUNDRED THOUSAND OR FEWER BUSHELS OF AGRICULTURAL COMMODITIES
FROM AGRICULTURAL COMMODITY HANDLERS SHALL BE CONSIDERED TO BE
AN AGRICULTURAL COMMODITY HANDLER IF THE COMBINED ANNUAL VOLUME
OF PURCHASES FROM THE PRODUCERS AND THE AGRICULTURAL COMMODITY
HANDLERS EXCEEDS ONE HUNDRED THOUSAND BUSHELS.
(D) "Depositor" means:
(1) Any person who delivers an agricultural commodity to a
licensed handler for storage, conditioning, shipment, or sale;
(2) Any owner or legal holder of a ticket or receipt
issued for an agricultural commodity who is a creditor of the
licensed handler for the value of the agricultural commodity;
(3) Any licensed handler storing an agricultural commodity
that he THE LICENSED HANDLER owns solely, jointly, or in common
with others in a
warehouse owned or controlled by him THE LICENSED HANDLER or any
other licensed
handler.
(E) "Receipt" means a warehouse receipt issued by a
licensed handler.
(F) "Nonnegotiable receipt" means a receipt on which it is
stated that the agricultural commodity received will be delivered
to the depositor or to the order of any other person named in the
receipt.
(G) "Negotiable receipt" means a receipt on which it is
stated that the agricultural commodity received will be delivered
to the bearer or to the order of any person named in the receipt.
(H) "Ticket" means a scale weight ticket, a load slip, or
any evidence, other than a receipt, given to a depositor by a
licensed handler upon delivery of an agricultural commodity to
the handler.
(I) "Warehouse" means any building, bin, protected
enclosure, or similar premises under the control of a licensed or
unlicensed handler used for receiving, storing, shipping, or
handling an agricultural commodity.
(J) "Storage" means the deposit of an agricultural
commodity into a warehouse either for the account of the licensed
handler operating the warehouse or for the account of a
depositor.
(K) "Producer" means any person who grows an agricultural
commodity on land that he THE PERSON owns or leases.
(L) "Agent" means any person, other than a producer, who
delivers an agricultural commodity to a licensed handler, either
for sale or for storage, for the account of the producer.
(M) "Agricultural commodity tester" or "tester" means a
person who operates a moisture meter and other quality testing
devices to determine the quality of an agricultural commodity.
(N) "Federally licensed grain inspector" means a person
who is licensed by the United States department of agriculture
under the "United States Grain Standards Act," 39 Stat. 482
(1916), 7 U.S.C. 71, as amended, to test and grade grain, as
"grain" is defined in that act.
(O) "Bailee" means a person to whom an agricultural
commodity is delivered in trust for storage in a warehouse with
title remaining in the name of the depositor.
(P) "Bailor" means a person who delivers an agricultural
commodity to a bailee in trust for storage in a warehouse with
title remaining in the name of the depositor.
(Q) "Bailment agreement" means a bailor-bailee agreement
between a depositor and a licensed handler as stated in the terms
of a receipt that is issued for an agricultural commodity in
storage and subject to the requirements of this chapter governing
the use of a receipt.
(R) "Delayed price agreement" means a written executory
contract executed by and between a licensed handler and a
depositor that covers the sale and transfer of title of an
agricultural commodity and states in its written terms the
service charges and the method for pricing the commodity at a
later date.
(S) "Delayed price marketing" means the sale and transfer
of title of an agricultural commodity with the price to be
established at a later date according to the terms of a delayed
price agreement.
(T) "DEFERRED PAYMENT"
MEANS THE DEFERRAL OF PAYMENT TO A DEPOSITOR BY A LICENSED
HANDLER FOR AN AGRICULTURAL COMMODITY TO WHICH THE LICENSED
HANDLER HAS TAKEN TITLE, FOR THE PURPOSE OF DEFERRING INCOME OF
THE DEPOSITOR FROM ONE TAX YEAR TO ANOTHER.
(U) "FEED AGREEMENT"
MEANS A WRITTEN CONTRACT EXECUTED BY AND BETWEEN A LICENSED
HANDLER AND A PRODUCER OR DEPOSITOR WHO DELIVERS AN AGRICULTURAL
COMMODITY TO THE LICENSED HANDLER FOR STORAGE WHEREBY EACH OF THE FOLLOWING
APPLIES:
(1) THE PRODUCER OR DEPOSITOR TRANSFERS TITLE TO THE
AGRICULTURAL COMMODITY TO THE LICENSED HANDLER IN EXCHANGE FOR A
NOMINAL SUM;
(2) THE PRODUCER, UPON DELIVERY OF THE AGRICULTURAL
COMMODITY TO THE LICENSED HANDLER, BECOMES A CREDITOR OF THE
LICENSED HANDLER DUE TO THE LIEN THAT ARISES UNDER SECTION
926.021 OF THE REVISED
CODE;
(3) ALL OR PART OF THE AGRICULTURAL COMMODITY IS
RETURNED TO THE PRODUCER AT A LATER DATE AND USED FOR FEED
PURPOSES.
(V) NOTWITHSTANDING
SECTION 1.02 OF THE REVISED
CODE, "AND" SHALL NOT BE READ
"OR" AND "OR" SHALL NOT BE READ "AND."
Sec. 926.021. (A) As used in this section:
(1) "Claimant" means a person who is unable to secure
satisfaction of financial obligations due from TO WHOM an
agricultural
commodity handler OWES A FINANCIAL OBLIGATION FOR AGRICULTURAL COMMODITIES
OR THE ACTUAL MONETARY PROCEEDS FROM AGRICULTURAL COMMODITIES THAT HAVE BEEN
DELIVERED TO THE HANDLER.
(2) "Failure" means any of the following involving an
agricultural commodity handler:
(a) An inability to financially satisfy claimants FINANCIALLY;
(b) A public declaration of insolvency;
(c) A revocation, SUSPENSION, OR CONDITIONAL SUSPENSION of
license with outstanding indebtedness
to claimants;
(d) Nonpayment in the ordinary course of business where a
good faith dispute does not exist;
(e) No application for license renewal;
(f) Denial of license renewal;
(g) Voluntarily surrendering a license.
(3) "Agricultural commodity assets" involving a failed AN
agricultural commodity handler mean MEANS any of the following:
(a) All agricultural commodities owned or stored,
including agricultural commodities in transit shipped by the
failed handler but not yet paid for;
(b) Redeposited agricultural commodities;
(c) Proceeds from the sale of agricultural commodities due
or to become due;
(d) The equity less any secured financing directly
associated therewith in assets in hedging or speculative margin
accounts held by commodity or security exchanges or dealers
representing the exchanges, and any moneys due or to become due
less any secured financing directly associated therewith from any
transactions on the exchanges;
(e) Any other unencumbered funds, property, or equity in
funds or property, wherever located, that can be directly traced
to the sale of agricultural commodities by the failed handler,
provided both that the funds, property, or equity in funds or
property shall not be considered to be encumbered unless the
encumbrance results from good and valuable considerations
advanced by any secured party on a good faith basis and that the
encumbrance is not the result of the taking of funds, property,
or equity in funds or property as additional collateral for an
antecedent debt;
(f) Any other unencumbered funds, property, or equity in
assets.
(B) A lien shall exist on all agricultural commodity
assets of a failed AN agricultural commodity handler in favor of
any
of the following:
(1) Claimants, including lenders, who possess receipts
covering grain owned or stored by the handler;
(2) Claimants who possess written evidence of ownership
other than a receipt disclosing a storage obligation of the
handler, including tickets;
(3) Claimants who surrendered receipts as part of an
agricultural commodity sales transaction but were not fully paid
FULLY for the agricultural commodity and the handler failed within
twenty TWENTY-ONE days after the surrender;
(4) Claimants who possess any other written evidence of
the sale of agricultural commodities to the failed handler for
which they were not fully paid FULLY, INCLUDING THE SALE OF
AGRICULTURAL COMMODITIES FOR A NOMINAL SUM UNDER A FEED AGREEMENT.
(C) The lien which THAT shall secure all claims described in
division (D) of this section, shall arise, ATTACH TO THE
AGRICULTURAL COMMODITY ASSETS OF AN AGRICULTURAL COMMODITY HANDLER, AND
BECOME EFFECTIVE
at the time of the
delivery of the agricultural commodity for sale OR FOR STORAGE UNDER A
BAILMENT AGREEMENT, commencement of
the storage obligation, or when funds are advanced by the lender,
and shall terminate when the liability of the agricultural
commodity handler to the claimant is discharged, provided that
the priority of each lien among the respective claimants shall
not relate to the date the claim arises but shall be governed by
the priorities established in division (D) of this section. The IN
THE EVENT OF A FAILURE, THE
lien claims of all claimants shall be considered to be assigned
by operation of this section to the department of agriculture,
and in the event of a failure and subsequent liquidation, the
lien shall transfer over to assets or proceeds of assets either
received or liquidated by the department of agriculture.
(D) In EXCEPT AS PROVIDED IN DIVISION (E) OF THIS SECTION,
IN the event of a failure, the director of agriculture
shall POSSESS EXCLUSIVE AUTHORITY TO enforce the lien claims and
allocate the proceeds as
follows:
(1) First priority against all agricultural commodity
assets shall be the following:
(a) Claimants, including lenders, who possess receipts
covering grain owned or stored by the agricultural commodity
handler;
(b) Claimants who possess written evidence of ownership
other than receipts disclosing a storage obligation of the
handler, including tickets;
(c) Claimants who surrendered receipts as part of an
agricultural commodity transaction, but were not fully paid
FULLY for
the agricultural commodity and the handler failed within
twenty-one days after the surrender.
(2) Second priority against all agricultural commodity
assets shall be to claimants who possess written evidence of the
sale of an agricultural commodity, including, but not limited
to,
tickets, delayed price agreements, or similar agricultural
commodity delivery contracts who completed delivery and pricing
within thirty days immediately prior to the failure of the
handler.
(3) To the extent not necessary to satisfy first and
second priority claimants, all other claimants who possess
written evidence of the sale of agricultural commodities to the
failed handler shall participate in the pro rata distribution of
the remainder of the agricultural commodity assets in an amount
not to exceed the value of their EACH claim.
(E) In the event that any adversary proceeding is
commenced to recover agricultural commodity assets upon which the
lien imposed in this section is imposed and the department of
agriculture declines to enter the proceeding, the director of
agriculture, upon application to him THE DIRECTOR by any
claimant, shall
assign to the claimant the applicable lien to permit the claimant
to pursue his THE CLAIMANT'S lien in the adversary proceeding to
the extent the
action will not delay the resolution of the proceeding, the
prompt liquidation of the assets, or the ultimate distribution of
the assets of TO all claimants.
Sec. 926.05. (A) Each person desiring to obtain or renew
a handler's license shall file an application annually with the
director of agriculture at such times, on such forms, and
containing such information as he THE DIRECTOR
prescribes, INCLUDING, IF APPLICABLE, THE APPOINTMENT OF A STATUTORY
AGENT UNDER SECTION 926.051 of the Revised Code.
(B) Each application for a license or license renewal
shall be accompanied by an application fee of two hundred dollars
for the first facility operated by the applicant plus one hundred
dollars for each additional facility operated by the same
applicant and by an examination fee, established by rule of the
director pursuant to section 926.02 of the Revised Code, for each
facility operated by the applicant. "Facility" means all
warehouse storage located on one premises, including any
additional warehouse storage located within one thousand yards of
that premises. The director may charge fees for examinations in
an amount not to exceed those fees charged by the United States
department of agriculture for comparable examinations.
The director shall deposit all fees collected under this
section in the commodity handler regulatory program fund created
in section 926.19 of the Revised Code.
(C) The director shall approve or reject each application
for a license within fifteen days after receipt thereof, provided
that such application is in proper form and contains the
information required under division (A) of this section. A
rejection of an application shall be accompanied by a statement
from the director of the additional requirements necessary for a
license. The applicant may resubmit his THE application without
payment of any additional fee.
(D) A handler's license shall expire on the date
prescribed by rule of the director. Whenever the director
considers it advisable to cancel the unexpired portion of an
outstanding license in order to renew it according to a new or
existing system of expiration dates, he THE DIRECTOR shall
refund to the
handler the unexpired portion of the fees paid under division (B)
of this section. Whenever the director issues an initial license
on a date that does not conform to the existing system, he THE
DIRECTOR shall
issue the license for whatever A period of time, not less than
six
nor more than eighteen months, that makes it THE DATE conform to
the
existing system. The application fee for that initial license
shall be proportionate to the fee for a one-year license.
(E) An application for renewal of a handler's license
shall be filed with the director not later than thirty days
before the current license expires. An applicant who fails to
file a renewal application in time shall pay a late fee of one
dollar for each day the application is late or fifteen dollars,
whichever is greater. A renewal license shall not be issued
until a late fee that is due has been paid.
(F) The director, with the approval of the commodity
advisory commission, may revoke or refuse to issue or renew a
handler's license if any of the following occurred within five
years before the application for the license or renewal was
filed:
(1) The applicant, or the spouse, parent, sibling, or
child of the applicant, or a manager employed by the applicant,
or any other individual materially involved in the agricultural
commodity handling business of the applicant was a principal in a
receivership or insolvency that resulted in losses to creditors
or to the agricultural commodity depositors fund established in
section 926.16 of the Revised Code;
(2) The applicant pled guilty to or was convicted of any
felony or charge of embezzlement under the laws of this state,
any other state, or of the United States;
(3) The applicant made a delivery of commodities not
authorized under this chapter;
(4) The applicant's license under the "United States
Warehouse Act," 39 Stat. 486 (1916), 7 U.S.C. 241, as amended,
was revoked or canceled due to a violation of that act.
Sec. 926.051. (A) AN APPLICANT FOR A
HANDLER'S LICENSE OR RENEWAL ISSUED UNDER SECTION 926.05 OF THE
REVISED
CODE WHO DOES NOT CONDUCT
BUSINESS AT AN ADDRESS IN THIS STATE AT WHICH THE APPLICANT
USUALLY CAN BE CONTACTED SHALL INCLUDE WITH THE APPLICATION A
WRITTEN APPOINTMENT OF AN AGENT, SOMETIMES REFERRED TO AS A
"STATUTORY AGENT," UPON WHOM ANY PROCESS, NOTICE, OR DEMAND MAY
BE SERVED. THE APPOINTMENT SHALL BE ACCOMPANIED BY A WRITTEN
ACCEPTANCE OF THE APPOINTMENT SIGNED BY THE AGENT. THE AGENT
MAY BE A NATURAL PERSON WHO IS A RESIDENT OF THIS STATE OR A
CORPORATION WHOSE PRINCIPAL PLACE OF BUSINESS IS LOCATED IN THIS
STATE. THE APPOINTMENT SHALL BE ON SUCH FORMS AND CONTAIN SUCH
INFORMATION AS THE DIRECTOR OF AGRICULTURE PRESCRIBES. FAILURE
TO COMPLY WITH THIS DIVISION IS GROUNDS FOR REJECTION OF THE
APPLICATION UNDER DIVISION (C)
OF SECTION 926.05 OF THE
REVISED
CODE.
(B)(1) IF AN AGENT
REMOVES FROM THE STATE OR RESIGNS, OR IF THE APPLICANT REVOKES
THE AGENT'S APPOINTMENT, THE APPLICANT IMMEDIATELY SHALL NOTIFY
THE DIRECTOR IN WRITING NOT LATER THAN THIRTY DAYS PRIOR TO THE
REMOVAL, RESIGNATION, OR REVOCATION. IF AN AGENT DIES, THE
APPLICANT IMMEDIATELY SHALL NOTIFY THE DIRECTOR IN WRITING.
PRIOR TO THE REMOVAL, RESIGNATION, OR REVOCATION AND NOT LATER
THAN THIRTY DAYS AFTER THE DEATH, THE APPLICANT
SHALL APPOINT ANOTHER AGENT AND FILE WITH THE DIRECTOR A
WRITTEN APPOINTMENT OF THE AGENT, ALONG WITH A WRITTEN
ACCEPTANCE OF THE APPOINTMENT SIGNED BY THE AGENT.
(2) IF THE AGENT'S ADDRESS CHANGES FROM THAT APPEARING ON
THE APPLICATION, THE APPLICANT, NOT LATER THAN THIRTY DAYS PRIOR
TO THE ADDRESS CHANGE, SHALL FILE WITH THE DIRECTOR A WRITTEN
STATEMENT SETTING FORTH THE NEW ADDRESS, ALONG WITH ANY OTHER
INFORMATION THE DIRECTOR REQUESTS.
(C) FAILURE TO COMPLY
WITH DIVISION (B) OF THIS
SECTION IS GROUNDS FOR SUSPENSION OR CONDITIONAL SUSPENSION OF A
HANDLER'S LICENSE, WITHOUT PRIOR HEARING, UNDER SECTION 926.10
OF THE REVISED
CODE.
Sec. 926.06. (A) The director of agriculture may issue a
handler's license, or renewal thereof, upon the payment of the
prescribed application fee, if the director is satisfied that the
applicant meets the standards of financial responsibility
required under this section and has complied with this chapter
and the rules adopted under it.
(B) Each (1) ON THE EFFECTIVE DATE OF THIS AMENDMENT,
EACH applicant for a handler's license, or renewal
thereof, shall have and maintain current assets equal to or
greater than current liabilities and a total net worth of EQUAL
TO at
least ten cents per bushel for the total number of bushels of
agricultural commodities that he THE APPLICANT handled during
the immediately
preceding twelve-month period to cover any indebtedness arising
from his THE APPLICANT'S operations as a licensed handler.
If
ONE YEAR AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, THE
TOTAL NET WORTH REQUIREMENT SHALL INCREASE TO ELEVEN CENTS PER
BUSHEL. FOR THE NEXT FOUR YEARS, THE REQUIREMENT SHALL CONTINUE
TO INCREASE BY ONE CENT PER BUSHEL EACH YEAR ON THE ANNIVERSARY
OF THE EFFECTIVE DATE OF THIS AMENDMENT, SO THAT FIVE YEARS
AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, AN APPLICANT'S TOTAL
NET WORTH SHALL BE EQUAL TO AT LEAST FIFTEEN CENTS PER BUSHEL FOR THE
TOTAL NUMBER OF BUSHELS OF AGRICULTURAL COMMODITIES THAT THE
APPLICANT HANDLED DURING THE IMMEDIATELY PRECEDING TWELVE-MONTH
PERIOD.
(2) ON THE EFFECTIVE DATE OF THIS AMENDMENT, IF an applicant is
applying for a handler's license for the first time and did not
handle any agricultural commodities during the immediately
preceding twelve-month period, he THE APPLICANT shall have an
allowable total
net worth of at least twenty-five thousand dollars for that
purpose. No
TO COVER ANY INDEBTEDNESS ARISING FROM THE APPLICANT'S OPERATIONS AS A
LICENSED HANDLER. ONE YEAR AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, THIS
ALLOWABLE TOTAL NET WORTH REQUIREMENT SHALL INCREASE TO THIRTY
THOUSAND DOLLARS. FOR THE NEXT FOUR YEARS, THE REQUIREMENT
SHALL CONTINUE TO INCREASE BY FIVE THOUSAND DOLLARS EACH YEAR ON
THE ANNIVERSARY OF THE EFFECTIVE DATE OF THIS AMENDMENT, SO THAT
FIVE YEARS AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, AN
APPLICANT'S TOTAL NET WORTH SHALL BE AT LEAST FIFTY THOUSAND
DOLLARS.
(3) ON THE EFFECTIVE DATE OF THIS AMENDMENT, NO
person shall be licensed as a handler unless he THE PERSON has
an allowable total net worth of at least twenty-five thousand
dollars. Any
ONE YEAR AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, THIS
ALLOWABLE TOTAL NET WORTH REQUIREMENT SHALL INCREASE TO THIRTY
THOUSAND DOLLARS. FOR THE NEXT FOUR YEARS, THE REQUIREMENT
SHALL CONTINUE TO INCREASE BY FIVE THOUSAND DOLLARS EACH YEAR ON
THE ANNIVERSARY OF THE EFFECTIVE DATE OF THIS AMENDMENT, SO THAT
FIVE YEARS AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, THE
PERSON'S TOTAL NET WORTH SHALL BE AT LEAST FIFTY THOUSAND
DOLLARS.
(4) ON THE EFFECTIVE DATE OF THIS AMENDMENT, ANY
deficiency in required total net worth may be
compensated for by an indemnity agreement executed by a person
pledging personal assets for the benefit of commodity creditors
should the licensed handler default in his THE LICENSED
HANDLER'S obligations to the
creditors; a bond issued by a corporate surety company that is
authorized to do business under the laws of this state; or, at
the director's discretion, an irrevocable letter of credit issued
by a bank or other lending institution that is authorized by this
state or the United States to issue such letters of credit and is
subject to service of process in this state for any suit on the
bond or letter of credit.
AN INDEMNITY AGREEMENT EXECUTED BY A PERSON PLEDGING
PERSONAL ASSETS SHALL BE ACCOMPANIED BY FINANCIAL STATEMENTS
THAT REFLECT THE PERSON'S FINANCIAL POSITION AS AN INDIVIDUAL
AND COMPLY WITH THE REQUIREMENTS OF DIVISION
(C) OF THIS SECTION.
A bond shall be made to the treasurer
of the state of Ohio to be deposited in the agricultural
commodity depositors fund created under section 926.16 of the
Revised Code for the benefit of any person who may be injured by
the handler's failure to meet obligations arising under this
chapter. A letter of credit shall be issued for the benefit of
the department of agriculture and the agricultural commodity
depositors fund.
In (5) THE DIRECTOR SHALL ADOPT RULES IN
ACCORDANCE WITH CHAPTER 119. OF
THE REVISED
CODE SPECIFYING THE ASSETS
FOR WHICH CREDIT MAY BE GIVEN IN
determining AN APPLICANT'S total net worth, credit may be given for
fixed assets such as buildings, machinery, and equipment, in the
amount of the insured value of such
assets under a policy of
insurance against loss or damage or, at the discretion of the
director, in the amount of their current market value as
determined by an accredited rural appraiser or an
appraiser
certified by the American appraisal institute.
The appraiser
shall be completely independent of any relationship with the
handler. Capital stock shall not be considered a liability for
the purpose of determining total net worth. Regardless.
(6) ON THE EFFECTIVE DATE OF THIS AMENDMENT, REGARDLESS of
the
total number of bushels of agricultural commodities that he AN
APPLICANT
handled during the immediately preceding twelve-month period, an
THE
applicant's total net worth need not exceed A MAXIMUM OF three hundred
thousand dollars.
ONE YEAR AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, THIS
MAXIMUM TOTAL NET WORTH NEED NOT EXCEED THREE HUNDRED THIRTY
THOUSAND DOLLARS. FOR THE NEXT FOUR YEARS, THIS MAXIMUM TOTAL
NET WORTH SHALL CONTINUE TO INCREASE BY THIRTY THOUSAND DOLLARS
EACH YEAR ON THE ANNIVERSARY OF THE EFFECTIVE DATE OF THIS
AMENDMENT, SO THAT FIVE YEARS AFTER THE EFFECTIVE DATE OF THIS
AMENDMENT, AN APPLICANT'S TOTAL NET WORTH NEED NOT EXCEED FOUR
HUNDRED FIFTY THOUSAND DOLLARS.
(C) In order for the director to determine if an applicant
meets the standards of financial responsibility required under
division (B) of this section, the applicant for a handler's
license, or renewal of a handler's license, shall submit a
current financial statement STATEMENTS THAT HAVE BEEN
prepared IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND
THAT HAVE BEEN AUDITED OR REVIEWED by a qualified person who is
not directly associated with the applicant's business AN INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANT. The
financial statement STATEMENTS shall consist of a THE
APPLICANT'S balance sheet showing the
current and deferred assets and liabilities of the applicant, a,
INCOME
statement of income, a statement of retained earnings OR
STATEMENT OF STOCKHOLDER'S EQUITY, a AND
statement of changes in financial position CASH FLOWS, and
whatever notes
are sufficient to explain the details contained in the financial
statement TOGETHER WITH ANY EXPLANATORY FOOTNOTES OR SUPPLEMENTARY
INFORMATION ACCOMPANYING THESE STATEMENTS AND WITH THE INDEPENDENT
ACCOUNTANT'S REPORT ON THE STATEMENTS.
The financial statement STATEMENTS accompanying an applicant's
original application shall show a statement closing date that is BE
FOR A YEAR ENDING
within six months of BEFORE the date of application.
Thereafter, the
applicant applying for renewal shall submit an annual statement SUCH
STATEMENTS
not later than ninety days after the close END of his
business THE year COVERED BY THE STATEMENTS.
The director may require an applicant for a handler's
license, or renewal of a handler's license, to submit a financial
statement prepared STATEMENTS AUDITED by a AN
INDEPENDENT certified public accountant licensed
under the laws of this state, and may require the attachment to
the statement of the accountant's opinion of the applicant's
financial status based on his examination of the records
conducted in accordance with generally accepted auditing
standards if the director determines that the first financial
statement STATEMENTS INITIALLY submitted under this division
is ARE incomplete or
otherwise unsatisfactory.
(D) The director may prepare and publish statistical
abstracts of information obtained under this section without
disclosing details that would identify a particular applicant
with particular statistics. Such information OTHERWISE is
otherwise
confidential for purposes of section 102.03 of the Revised Code,
and records of the department of agriculture containing such
information are not otherwise public records under section 149.43
of the Revised Code.
Sec. 926.10. The director of agriculture may, by order,
MAY
refuse to grant or may suspend or conditionally suspend a
handler's license, without prior hearing, when he THE DIRECTOR
determines that
there is reasonable cause to believe that the applicant or
licensee:
(A) Has failed to maintain the insurance coverage required
under section 926.07 of the Revised Code;
(B) Has failed to maintain accurate and complete records
and accounts as required under section 926.11 of the Revised
Code;
(C) Has failed to charge, collect, or remit the fee
required under division (B) of section 926.16 of the Revised
Code;
(D) Has refused to allow the director or his THE DIRECTOR'S
authorized
representative to examine, at a reasonable time, his THE APPLICANT'S
OR LICENSEE'S accounting
records, accounts, agricultural commodity inventories, or
warehouse;
(E) Does not have in his possession POSSESS sufficient
agricultural commodities to cover the outstanding receipts or
tickets issued or assumed by him THE APPLICANT OR LICENSEE under
bailment agreements;
(F) Has issued a receipt in violation of this chapter or
any rules adopted under it;
(G) Does not have the net assets specified in division (B)
of section 926.06 of the Revised Code or has failed to obtain a
bond or other protection for any deficiency in required net
assets as provided in that division;
(H) Does not have his THE obligations for agricultural
commodities purchased under delayed price agreements secured or
represented as required under division (B) or (C) of section
926.29 of the Revised Code;
(I) DOES NOT SUBMIT
FINANCIAL STATEMENTS THAT COMPLY WITH THE REQUIREMENTS OF
DIVISION (C) OF SECTION 926.06
OF THE REVISED
CODE WITHIN THE APPLICABLE TIME PERIOD
SPECIFIED IN THAT DIVISION;
(J) DOES NOT NOTIFY
THE DIRECTOR OF A STATUTORY AGENT'S CHANGE OF ADDRESS OR OF THE
DEATH, REMOVAL, RESIGNATION, OR REVOCATION OF THE APPOINTMENT OF
A STATUTORY AGENT OR DOES NOT APPOINT ANOTHER AGENT IN
ACCORDANCE WITH SECTION 926.051 OF THE
REVISED
CODE.
The applicant or licensee to whom a denial or,
suspension, or
conditional suspension order is issued shall be afforded a
hearing in accordance with Chapter 119. of the Revised Code,
after which the director shall issue or deny the license applied
for in the pending application or reinstate or revoke the
suspended or conditionally suspended license. The director may
suspend or, conditionally suspend, or revoke a license
after a
hearing held in accordance with Chapter 119. of the Revised Code
for any other violations of this chapter or any rules adopted
under it.
The director shall cause a notice to be posted on the
property of a person whose license has been suspended,
conditionally suspended, or revoked stating the limitations or
restrictions imposed on the person in the handling of
agricultural commodities as a result of the suspension,
conditional suspension, or revocation. The notice shall not be
removed from the property without written authorization from the
director.
Sec. 926.16. (A) There is hereby created in the state
treasury the agricultural commodity depositors fund. The state
shall not be held liable for any claims presented against the
fund under section 926.18 of the Revised Code. The fund shall
consist of a per-bushel fee remitted by licensed handlers under
this section, any sums that the director of agriculture may
collect by any legal action on behalf of the fund, and any
property or securities acquired through the use of moneys in the
fund. The moneys collected under this section and deposited in
the fund shall be used exclusively to indemnify depositors as
provided in section 926.18 of the Revised Code and for no other
purpose.
(B) All licensed handlers shall remit such THE fee as is
determined by the director in accordance with section 926.17 of
the Revised Code on:
(1) All agricultural commodities delivered to them for
storage under a bailment agreement or for sale, exchange, or
negotiation or solicitation of sale by depositors who produced
them or caused them to be produced;
(2) All agricultural commodities delivered to them for
storage under a bailment agreement, regardless of who produced
the commodities, if a receipt is to be issued for the
commodities;
(3) All agricultural commodities that are being stored by
licensed handlers who own them solely, jointly, or in common with
others and who are issuing a receipt for them in accordance with
section 926.25 of the Revised Code. The maximum number of
bushels on which a licensed handler shall be required to pay the
fee under division (B)(3) of this section between the first day
of July and the thirtieth day of June of any marketing year shall
be the greatest number of bushels of all commodities for which
receipts are outstanding at any one time during that period.
(4) ALL AGRICULTURAL COMMODITIES THAT ARE NOT INVOLVED IN A
TRANSACTION DESCRIBED IN DIVISION (B)(1), (2), OR (3) OF THIS SECTION
AND THE MONETARY PROCEEDS OF WHICH ARE CONTROLLED BY A HANDLER WHO IS NOT
INVOLVED IN THE
PRODUCTION OF THE COMMODITIES AND WHO SERVES AS AN INTERMEDIARY BETWEEN THE
PRODUCER AND A HANDLER RECEIVING THE COMMODITIES. IN SUCH A SITUATION, THE
HANDLER RESPONSIBLE FOR PAYING THE PRODUCER SHALL REMIT THE FEE.
(C) All licensed handlers shall account for and remit
moneys under division (B) of this section to the director in such
manner and using such forms as the director shall prescribe by
rule.
(D) All disbursements from the fund shall be paid by the
treasurer of state pursuant to vouchers authorized by the
director.
(E) All interest earned by the fees collected under this
section shall be credited to the fund and, at the request of the
director of agriculture and to the extent necessary to pay the
examination and administrative costs of this chapter as provided
in section 926.19 of the Revised Code, may be transferred by the
director of budget and management to the commodity handler
regulatory program fund created in that section.
Sec. 926.18. (A) When a depositor has made a demand for
settlement of an obligation concerning an agricultural commodity
on which a fee was required to be remitted under section 926.16
of the Revised Code and the licensed handler has failed to honor
the demand, the depositor, after providing the director of
agriculture or his THE DIRECTOR'S authorized representative with
evidence of his THE DEPOSITOR'S demand and the dishonoring of
his THAT demand, may file a claim with
the director NOT LATER THAN SIX MONTHS AFTER DISHONOR OF THE DEMAND for
indemnification of his THE DEPOSITOR'S damages,
from the agricultural commodity depositors fund, to be measured as
follows:
(1) The commodity advisory commission created in section
926.32 of the Revised Code shall establish the dollar value of
the loss incurred by a depositor holding a receipt or a ticket
for agricultural commodities on which a fee was required and that
he THE DEPOSITOR delivered to the handler under a delayed price
agreement or
under a, bailment agreement, OR FEED AGREEMENT, OR THAT
THE DEPOSITOR DELIVERED TO THE HANDLER BEFORE DELIVERY WAS DUE UNDER A
CONTRACT OR OTHER AGREEMENT BETWEEN THE DEPOSITOR AND HANDLER. The value
shall be based on the fair
market price being paid to producers by handlers for the
commodities on the date on which the director received notice
that the receipt or ticket was dishonored by the handler. All
depositors filing claims under this division shall be bound by
the value determined by the commission.
(2) The dollar value of the loss incurred by a depositor
who has sold or delivered for sale, exchange, or solicitation or
negotiation for sale agricultural commodities on which a fee was
required and who is a creditor of the handler for all or a part
of the value of the commodities shall be based on the amount
stated on the obligation on the date of the sale.
(B) The agricultural commodity depositors fund shall be
liable to a depositor for any moneys that are not recovered
through other legal and equitable remedies as follows:
(1) For commodities stored with a licensed handler under a
bailment agreement for one hundred per cent of his THE
DEPOSITOR'S loss as determined under division (A)(1) of this section;
(2) For commodities stored DEPOSITED with a licensed handler
under
an agreement other than a bailment agreement for one hundred per
cent of the first ten thousand dollars of his THE DEPOSITOR'S
loss and eighty per cent of the remaining dollar value of his
THAT loss as determined under divisions (A)(1) and (2) of this
section. The aggregate
amount recovered by a depositor under all remedies shall not
exceed one hundred per cent of the value of his THE DEPOSITOR'S
loss. If the moneys recovered by a depositor under all remedies exceed one
hundred per cent of the value of his THE DEPOSITOR'S loss, the
depositor shall reimburse the fund in the amount that exceeds the value of
his THAT loss.
(C) The director, with the approval of the commodity
advisory commission, shall determine the validity of all claims
presented against the fund. A claim filed under this section for
losses on agricultural commodities other than commodities stored
under a bailment agreement shall not be valid unless the
depositor has made a demand for settlement of the obligation
within twelve months after the commodities are priced or
delivered for sale, whichever occurs later. Any depositor whose
claim has been refused by the director and the commission may
appeal the refusal to either TO the court of common pleas of
Franklin county or the court of common pleas of the county in
which the depositor resides.
The director shall provide for payment from the fund to any
depositor whose claim has been found to be valid.
(D) If at any time the fund does not contain sufficient
assets to pay valid claims, the director shall hold those claims
for payment until the fund again contains sufficient assets.
Claims against the fund shall be paid in the order in which they
are presented and found to be valid.
(E) If a depositor files an action for legal or equitable
remedies in a state or federal court having jurisdiction in those
matters that includes a claim against agricultural commodities
upon which the depositor may file a claim against the fund at a
later date, he THE DEPOSITOR ALSO shall also file with
the director a
copy of the action filed with the court.
In the event of payment of a loss under this section, the
director shall be subrogated to the extent of the amount of any
payments to all rights, powers, privileges, and remedies of the
depositor against any person regarding the loss.
The depositor shall render all necessary assistance to aid
the director in securing the rights granted in this section. No
action or claim initiated by the depositor and pending at the
time of payment from the fund may be compromised or settled
without the consent of the director.
(F) If, prior to the effective date of this amendment
JUNE 20, 1994, a lawsuit, adversary proceeding, or
other legal proceeding is brought against a depositor to recover money or
payments from funds to which a depositor has a right of
indemnification under this section, and the depositor retains legal counsel
resulting in a cost or expense to the depositor, upon the rendering of a
judgment or other resolution of the lawsuit, adversary proceeding, or other
legal proceeding, the director, in his THE DIRECTOR'S discretion
and with the approval of the commodity advisory commission, may authorize
indemnification from the fund for attorney's fees paid by the depositor. Any
claim made by a depositor for the payment of attorney's fees under this
division shall be made in the same manner as a claim under division (A) of
this section.
Attorney's fees payable under this division shall be limited to the actual
hourly fee charged or one hundred dollars per hour, whichever is less, and to
a total maximum amount of three hundred dollars.
Sec. 926.19. (A) There is hereby created in the state
treasury the commodity handler regulatory program fund. The
moneys in the fund shall be used to pay the examination and
administrative costs of this chapter and shall consist of:
(1) All revenues collected by the director of agriculture
from distribution of the receipt forms under division (B) of
section 926.20 of the Revised Code and such other forms and
registration books as the director may require by rule for the
administration of this chapter;
(2) The application and examination fees collected under
division (B) of section 926.05 of the Revised Code;
(3) The agricultural commodity tester certificate fees
collected under division (B) of section 926.30 of the Revised
Code;
(4) Interest income transferred from the agricultural
commodity depositors fund under section 926.16 of the Revised
Code;
(5) ALL FINES, PENALTIES, AND COSTS, EXCEPT COURT COSTS, THAT ARE
COLLECTED UNDER SECTION 926.99 of the Revised Code IN CONSEQUENCE OF A VIOLATION OF THIS
CHAPTER;
(6) ALL SUMS COLLECTED BY THE DIRECTOR OF AGRICULTURE UNDER A CONTRACT
DESCRIBED IN SECTION 926.36 of the Revised Code.
(B) The examination and administrative costs of this
chapter shall be computed by the director not later than the
thirty-first day of December of each even-numbered year to cover
the biennium that begins on the following first day of July. The
commodity advisory commission created in section 926.32 of the
Revised Code shall approve, and may amend, the examination and
administrative costs. The commission's decision shall be binding
on the director. The commission may also at any time MAY
approve for
presentation to the controlling board a request to increase or
decrease the appropriation authority for the biennial examination
and administrative costs if it determines that an increase or
decrease in the cost is necessary to carry out the purpose of
this chapter.
(C) If at any time the moneys deposited in the fund,
including interest income transferred from the agricultural
commodity depositors fund under section 926.16 of the Revised
Code, are not sufficient to pay the examination and
administrative costs of this chapter, the director shall request
an appropriation from the general revenue fund to pay those
costs.
Sec. 926.29. (A) A delayed price agreement is an
executory contract which THAT shall be in such a form and
contain such
terms as the director of agriculture shall adopt by rule under
Chapter 119. of the Revised Code. The agreement shall be
executed by and between the licensed handler and the depositor or
by their authorized representatives not later than fifteen days
after the first delivery of an agricultural commodity is received
for delayed pricing under the agreement. The handler shall
maintain a file of executed agreements that are available for
inspection at any reasonable time by the director or his THE
DIRECTOR'S
designated representative. The handler ALSO shall also keep
records
and ledgers the director considers necessary to document the
handler's obligation to the depositor under a delayed price
agreement. He THE HANDLER ALSO shall also provide
reports, forms, and other
evidence the director shall adopt by rule to document the storage
and marketing of commodities under the delayed price agreement.
(B) Except SUBJECT TO THE LIEN THAT ATTACHES UNDER SECTION 926.021
of the Revised Code AND EXCEPT as otherwise provided in division (C) of this
section, a licensed handler who purchases any agricultural
commodity under a delayed price agreement AT ALL TIMES shall at all
times
maintain the commodity, rights in the commodity, proceeds from
the sale of the commodity, or a combination of the commodity,
rights, and proceeds equal to at least ninety per cent of the
value of his THE HANDLER'S obligation for all commodities that
he THE HANDLER has purchased
that are not priced under delayed price agreements. The
obligation shall be secured or represented by one or more of the
following:
(1) Maintenance of the commodity in storage in the
handler's warehouse;
(2) Rights in commodities as evidenced by a receipt or
ticket for storage of the commodities under a bailment agreement
in another warehouse approved by the director;
(3) Proceeds from the sale of commodities as evidenced or
represented by one or more of the following:
(a) Cash on hand or held on account in a state or
federally licensed financial institution or a lending agency of
the farm credit administration;
(b) Short-term investments held in time accounts with
state or federally licensed financial institutions or a lending
agency of the farm credit administration;
(c) Balances in commodity margin accounts;
(d) Commodities sold and shipped by the handler under
delayed price agreements that have not been priced less any
payments or advances that have been received by the handler;
(e) Such other evidence of unencumbered assets as may be
acceptable to the director, including an irrevocable letter of
credit.
(C) A IN ADDITION TO THE LIEN THAT ATTACHES UNDER SECTION 926.021
of the Revised Code, A depositor who sells an agricultural commodity to a
licensed handler under a delayed price agreement may, upon giving
notice to the handler either at or prior to the time of delivery,
MAY demand as security for payment for the commodity an amount that,
at the time of delivery, is equal to one hundred per cent of the
national loan rate value of the commodity under the United States
department of agriculture price support program, or seventy-five
per cent of the average price being paid for the commodity in the
state on the date of demand as published by the market news
service of the department of agriculture, whichever is less. The
handler shall satisfy a demand for security on a commodity sold
under a delayed price agreement at the handler's option by one of
the following:
(1) Payment to the depositor by cash or bank draft on the
account of the handler;
(2) Causing an irrevocable letter of credit to be issued
to the depositor by a bank designated by the handler securing
payment in the specified amount. The letter of credit shall be
subject to Chapter 1305. of the Revised Code and rules adopted by
the director pursuant to Chapter 119. of the Revised Code.
Sec. 926.30. (A) No licensed handler or employee of a
licensed handler who receives an agricultural commodity from a
producer, either for sale or for storage under a bailment
agreement, shall perform a quality test on the commodity for the
purpose of applying a premium, discount, or conditioning charge
unless the person making the test has completed a training course
or on-the-job training as an agricultural commodity tester PASSED
AN EXAMINATION ON THE SUBJECT THAT IS APPROVED BY THE DIRECTOR OF
AGRICULTURE. UPON APPLICATION BY A PERSON WHO HAS PASSED THE EXAMINATION, THE
DIRECTOR SHALL ISSUE TO THE PERSON AN AGRICULTURAL COMMODITY TESTER
CERTIFICATE THAT SHALL BE VALID FOR A PERIOD OF THREE YEARS. EXCEPT AS
OTHERWISE PROVIDED IN THIS DIVISION, AN AGRICULTURAL COMMODITY TESTER SHALL
PASS AN EXAMINATION ON AGRICULTURAL COMMODITY TESTING APPROVED BY THE DIRECTOR
PRIOR TO EACH RENEWAL OF A CERTIFICATE. THE DIRECTOR MAY EXEMPT FROM THE
EXAMINATION REQUIREMENT FOR CERTIFICATE RENEWAL AN AGRICULTURAL COMMODITY
TESTER WHO, DURING THE YEAR PRIOR TO EXPIRATION OF THE CERTIFICATE,
SUCCESSFULLY COMPLETES TRAINING ON AGRICULTURAL COMMODITY TESTING THAT HAS
BEEN APPROVED BY THE DIRECTOR. The
director of agriculture shall establish by rule the curriculum
for the training course or on-the-job STANDARDS THAT SUCH training
that
shall MUST MEET IN ORDER TO BE APPROVED BY THE DIRECTOR. THE RULES
SHALL REQUIRE THE TRAINING TO include
instructions in the use of the official grain standards of the
United States as a basis for determining the quality of the
commodities tested by an agricultural commodity tester. AN AGRICULTURAL
COMMODITY TESTER CERTIFICATE ISSUED PRIOR TO THE EFFECTIVE DATE OF THIS
AMENDMENT SHALL BE CONSIDERED TO BE VALID UNTIL THE DATE ON WHICH, AT THE TIME
OF ISSUANCE, IT WAS SCHEDULED TO EXPIRE. UPON EXPIRATION OF THE CERTIFICATE,
THE EXAMINATION REQUIREMENT FOR RENEWAL SHALL APPLY.
(B) Upon successful completion of the training required
under division (A) of this section and upon application by the
trainee, the director shall issue to an agricultural commodity
tester a certificate that shall be valid for a period of two
years. The director may determine that retraining or review is
necessary for the tester as a result of changes in or amendments
to the official grain standards of the United States, or if the
director has reason to believe that retraining is necessary as a
result of complaints relating to the tester's inability to
accurately test commodities according to the official grain
standards. A fee to cover the cost of issuing certificates and
administering the educational program shall be established by
rule of the director adopted under Chapter 119. of the Revised
Code and shall be deposited into the commodity handler regulatory
program fund created in section 926.19 of the Revised Code.
(C) The director may suspend or revoke the certificate of
an agricultural commodity tester in accordance with Chapter 119.
of the Revised Code for failure or inability of the tester to
apply the official grain standards of the United States in
testing the quality of an agricultural commodity.
Sec. 926.32. (A) There is hereby created the commodity
advisory commission consisting of seven members to be appointed
by the director of agriculture. Not later than January 1, 1983,
the director shall make appointments to the commission. Of the
initial appointments, three shall be for terms ending January 1,
1984, two shall be for terms ending January 1, 1985, and two
shall be for terms ending January 1, 1986. Thereafter, terms of
office shall be for three years, each term ending on the same day
of the same month of the year as did the term that it succeeds.
Each member shall hold office from the date of his appointment
until the end of the term for which he THE MEMBER was appointed.
Any member
appointed to fill a vacancy occurring prior to the expiration of
the term for which his THE MEMBER'S predecessor was appointed
shall hold
office for the remainder of the term. Any member shall continue
in office subsequent to the expiration date of his THE MEMBER'S
term until his THE MEMBER'S
successor takes office or until a period of sixty days has
elapsed, whichever occurs first.
(B) The commission shall at all times be composed of three
farmers who are primarily engaged PRIMARILY in the production of
agricultural commodities, one licensed handler who is the manager
of a farmers cooperative, one licensed handler who is the owner
and operator of a warehouse located in a rural area, one licensed
handler representing a warehouse located at a major agricultural
commodity transportation center, and one banker who is an officer
of a rural bank. The director shall annually designate ANNUALLY
one
member of the commission to serve as its chairman CHAIRPERSON
and may, after
notice and public hearing, MAY remove any member only for neglect of
duty or malfeasance in office.
(C) A vacancy on the commission shall not impair the right
of the other members to exercise all of the commission's powers.
Two farmer members and two handler members shall constitute a
quorum for the conduct of business of the commission.
(D) The commission shall meet in Columbus at least three
times annually at times that the commission shall set by rule and
may meet at other times that the chairman CHAIRPERSON or a
majority of the
commission members considers appropriate; provided, that no
meeting shall be held on the call of the chairman CHAIRPERSON
unless at least
seven days' written notice is first given to all members of the
commission.
(E) Each member shall be reimbursed for his THE MEMBER'S actual
and
necessary expenses incurred in the discharge of his duties as a
commission member.
(F) The commission may adopt, amend, or rescind rules or
procedures governing the conduct of its internal affairs.
(G) The commission may request from the director, and the
director shall provide, meeting space, assistance, services, and
data to enable it to carry out its functions.
(H) All costs of the commission, including all of the
expenses of its members and consultants authorized in this
section, shall be paid from the commodity handler regulatory
program fund created in section 926.19 of the Revised Code
pursuant to itemized vouchers approved by the chairman
CHAIRPERSON of the
commission and the director.
(I) The director shall designate an official or employee
of the department of agriculture to act as the executive
secretary of the commission. The director ALSO may also request
the
attendance at meetings of the commission consultants with
expertise in agricultural law, marketing, statistics, or any
other subject to advise and consult with the commission on
matters on the agenda of any regular or special meeting of the
commission. The expenses incurred by consultants attending those
meetings shall be reimbursed according to division (H) of this
section. The executive secretary shall keep or cause to be kept
a permanent journal of all meetings, proceedings, findings,
determinations, and recommendations of the commission, including
an itemized statement of the expenses allowed to each member of
the commission and consultants under this section. The journal
shall be a public record.
(J) In addition to the authority granted in division (F)
of section 926.05, division (B) of section 926.17, divisions (A)
and (C) of section 926.18, and division (B) of section 926.19 of
the Revised Code, the commission shall advise and counsel the
director on all matters relating to:
(1) The administration of this chapter;
(2) The development of rules authorized by section 926.02
of the Revised Code;
(3) Any other matters that the commission and the director
consider appropriate in carrying out this chapter.
Sec. 926.36. THE DIRECTOR OF AGRICULTURE MAY ENTER INTO A
CONTRACT WITH A MARKETING ASSOCIATION THAT IS INVOLVED IN A
PROGRAM DESIGNED TO IMPROVE OR EXPAND THE MARKET FOR AN
AGRICULTURAL COMMODITY AND FUNDED BY AN ASSESSMENT THAT IS
LEVIED ON PRODUCERS OF THE AGRICULTURAL COMMODITY AND CALCULATED
ON THE BASIS OF THE VOLUME OF AGRICULTURAL COMMODITIES PRODUCED BY THE
PRODUCER. UNDER THE CONTRACT, THE MARKETING ASSOCIATION MAY
AGREE TO PAY THE DIRECTOR A MUTUALLY ACCEPTABLE SUM AND IN
EXCHANGE THE DIRECTOR MAY AGREE TO FURNISH THE MARKETING
ASSOCIATION WITH INFORMATION THAT THE DIRECTOR OBTAINS UNDER
SECTION 926.11 OF THE REVISED
CODE REGARDING THE VOLUME OF
COMMODITIES PRODUCED BY PRODUCERS WHO PARTICIPATE IN THE
MARKETING PROGRAM, AND RELATED FINANCIAL INFORMATION.
THE MARKETING ASSOCIATION MAY USE THE INFORMATION TO
DETERMINE WHETHER A PRODUCER HAS TRUTHFULLY DISCLOSED THE VOLUME
OF AGRICULTURAL COMMODITIES PRODUCED BY THE PRODUCER AND WHETHER
THE MARKETING ASSOCIATION HAS RECEIVED THE CORRECT AMOUNT IN
ASSESSMENTS.
ANY SUM PAID TO THE DIRECTOR UNDER A CONTRACT ENTERED INTO UNDER
THIS SECTION SHALL BE DEPOSITED IN THE COMMODITY HANDLER
REGULATORY PROGRAM FUND CREATED IN SECTION 926.19 OF THE
REVISED
CODE.
Sec. 926.99. (A) Whoever (1) EXCEPT AS PROVIDED IN
DIVISION (A)(2) OF THIS SECTION, WHOEVER violates section 926.04
of the Revised Code is
guilty of a minor misdemeanor OF THE FIRST DEGREE ON A FIRST OFFENSE
AND A FELONY OF THE FIFTH DEGREE ON EACH SUBSEQUENT OFFENSE.
(2) A PERSON WHO
VIOLATES SECTION 926.04 OF THE
REVISED
CODE AND WHO IS INSOLVENT AND FINANCIALLY
UNABLE TO SATISFY A CLAIMANT AS DEFINED IN SECTION
926.021 OF THE REVISED
CODE IS GUILTY OF A FELONY OF
THE FIFTH DEGREE IF THE FINANCIAL OBLIGATION OWED BY THE
OFFENDER TO THE CLAIMANT IS FIVE HUNDRED DOLLARS OR MORE AND IS
LESS THAN FIVE THOUSAND DOLLARS. IF THE FINANCIAL OBLIGATION IS
FIVE THOUSAND DOLLARS OR MORE AND IS LESS THAN ONE HUNDRED
THOUSAND DOLLARS, THE OFFENDER IS GUILTY OF A FELONY OF THE
FOURTH DEGREE. IF THE FINANCIAL OBLIGATION IS ONE HUNDRED
THOUSAND DOLLARS OR MORE, THE OFFENDER IS GUILTY OF A FELONY OF
THE THIRD DEGREE.
(B) Whoever violates division (E) or (F) of section 926.20 or division (A) of
section 926.22 of the Revised Code is guilty of a minor misdemeanor on a first
offense and a misdemeanor of the second degree on each
subsequent offense.
(C) Whoever violates division (G) of section 926.20 or section 926.34 or
926.35 of the Revised Code is guilty of a felony of the
fourth degree.
(D) Whoever violates division (A) of
section
926.28, or division (B) of section 926.29, of the Revised Code
is guilty of a
felony of the fifth degree.
(E) Whoever violates section 926.31 of the Revised Code is guilty of a
misdemeanor of the fourth degree.
Sec. 4513.32. When one vehicle is towing another vehicle,
the drawbar or other connection shall be of sufficient strength
to pull all the weight towed thereby, and the drawbar or other
connection shall not exceed fifteen feet from one vehicle to the
other, except the connection between any two vehicles
transporting poles, pipe, machinery, or other objects of
structural nature which cannot readily be dismembered.
When one vehicle is towing another and the connection
consists only of a chain, rope, or cable, there shall be
displayed upon such connection a white flag or cloth not less
than twelve inches square.
In addition to such drawbar or other connection, each
trailer and each semitrailer which is not connected to a
commercial tractor by means of a fifth wheel shall be coupled
with stay chains or cables to the vehicle by which it is being
drawn. The chains or cables shall be of sufficient size and
strength to prevent the towed vehicle's parting from the drawing
vehicle in case the drawbar or other connection should break or
become disengaged. In case of a loaded pole trailer, the
connecting pole to the drawing vehicle shall be coupled to the
drawing vehicle with stay chains or cables of sufficient size and
strength to prevent the towed vehicle's parting from the drawing
vehicle.
Every trailer or semitrailer, except pole and cable
trailers and pole and cable dollies operated by a public utility
as defined in section 5727.01 of the Revised Code, shall be
equipped with a coupling device, which shall be so designed and
constructed that the trailer will follow substantially in the
path of the vehicle drawing it, without whipping or swerving from
side to side. Vehicles used to transport agricultural produce or
agricultural production materials between a local place of
storage and supply and the farm, when drawn or towed on a street
or highway at a speed of twenty-five miles per hour or less, and
vehicles designed and used exclusively to transport a boat
between a place of storage and a marina, or in and around a
marina, when drawn or towed on a street or highway for a distance
of no more than ten miles and at a speed of twenty-five miles per
hour or less, shall have a drawbar or other connection, including
the hitch mounted on the towing vehicle, which shall be of
sufficient strength to pull all the weight towed thereby. Only
one such vehicle used to transport agricultural produce or
agricultural production materials as provided in this section may
be towed or drawn at one time unless the towing vehicle is an
agricultural tractor, EXCEPT AS FOLLOWS:
(A) AN AGRICULTURAL
TRACTOR MAY TOW OR DRAW MORE THAN ONE SUCH VEHICLE;
(B) A PICKUP TRUCK OR
STRAIGHT TRUCK DESIGNED BY THE MANUFACTURER TO CARRY A LOAD OF
NOT LESS THAN ONE-HALF TON AND NOT MORE THAN TWO TONS MAY TOW OR
DRAW NOT MORE THAN TWO SUCH VEHICLES THAT ARE BEING USED TO
TRANSPORT AGRICULTURAL PRODUCE FROM THE FARM TO A LOCAL PLACE OF
STORAGE. NO VEHICLE BEING SO TOWED BY SUCH A PICKUP TRUCK OR STRAIGHT TRUCK
SHALL BE CONSIDERED TO BE A MOTOR VEHICLE.
Sec. 5577.042. (A) AS USED IN THIS SECTION:
(1) "FARM MACHINERY" HAS THE SAME MEANING AS IN SECTION
4501.01 OF THE REVISED
CODE.
(2) "FARM COMMODITIES" INCLUDES LIVESTOCK,
BULK MILK, CORN, SOYBEANS, TOBACCO, AND WHEAT.
(3) "FARM TRUCK" MEANS A TRUCK USED IN THE TRANSPORTATION
FROM A FARM OF FARM COMMODITIES WHEN THE TRUCK IS OPERATED IN
ACCORDANCE WITH THIS SECTION.
(4) "LOG TRUCK" MEANS A TRUCK USED IN THE TRANSPORTATION OF TIMBER FROM
THE SITE OF ITS CUTTING WHEN THE TRUCK IS OPERATED IN ACCORDANCE WITH THIS
SECTION.
(B) NOTWITHSTANDING
SECTIONS 5577.02 AND 5577.04 OF THE
REVISED CODE, A FARM TRUCK OR FARM
MACHINERY TRANSPORTING FARM COMMODITIES, OR A LOG TRUCK TRANSPORTING TIMBER,
FROM
THE PLACE OF PRODUCTION TO THE FIRST POINT OF DELIVERY WHERE THE COMMODITIES
ARE
WEIGHED AND TITLE TO THE COMMODITIES OR TIMBER IS TRANSFERRED, MAY EXCEED BY
NO MORE THAN FIVE PER CENT THE WEIGHT PROVISIONS OF SECTIONS
5577.01 TO 5577.09 OF THE REVISED
CODE AND NO PENALTY PRESCRIBED IN SECTION 5577.99 OF THE
REVISED CODE SHALL BE IMPOSED. IF A FARM TRUCK OR FARM
MACHINERY SO TRANSPORTING FARM COMMODITIES, OR A TIMBER TRUCK SO TRANSPORTING
TIMBER, EXCEEDS BY MORE THAN FIVE PER CENT THE WEIGHT PROVISIONS OF THOSE
SECTIONS, BOTH OF THE FOLLOWING APPLY WITHOUT REGARD TO THE FIVE PER
CENT ALLOWANCE PROVIDED
BY THIS DIVISION:
(1) THE APPLICABLE PENALTY PRESCRIBED IN SECTION 5577.99 of the Revised Code;
(2) THE CIVIL LIABILITY IMPOSED BY SECTION 5577.12 of the Revised Code.
(C)(1) DIVISION (B) OF THIS SECTION DOES NOT
APPLY TO THE OPERATION OF A FARM TRUCK, LOG TRUCK, OR FARM MACHINERY
TRANSPORTING FARM COMMODITIES DURING
THE MONTHS OF FEBRUARY AND MARCH.
(2) REGARDLESS OF WHEN THE OPERATION OCCURS, DIVISION (B) OF THIS
SECTION DOES NOT APPLY TO THE OPERATION OF A FARM TRUCK, LOG TRUCK, OR FARM
MACHINERY TRANSPORTING FARM COMMODITIES ON
EITHER OF THE FOLLOWING:
(a) A HIGHWAY THAT IS PART OF THE INTERSTATE SYSTEM;
(b) A HIGHWAY, ROAD, OR BRIDGE THAT IS SUBJECT TO REDUCED
MAXIMUM WEIGHTS UNDER SECTION 4513.33, 5577.07, 5577.071, 5577.08, 5577.09, OR
5591.42 OF THE
REVISED CODE.
Section 2. That existing sections 926.01, 926.021, 926.05,
926.06, 926.10, 926.16, 926.18, 926.19, 926.29, 926.30, 926.32,
926.99, and 4513.32 of the Revised Code are hereby repealed.
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