Code of Virginia

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Code of Virginia
Title 3.2. Agriculture, Animal Care, and Food
Chapter 47. Sale of Farm Produce
9/19/2021

Article 2. Commission Merchants.

§ 3.2-4709. Definitions.

As used in this article, unless the context requires a different meaning:

"Auction market," "livestock auction market," "livestock sales ring," "livestock auction," or "livestock auction ring" means a place or establishment operated for compensation or profit as a private or public market, consisting of pens, or other enclosures, and their appurtenances, in which livestock are received, held for sale or where livestock is sold or offered for sale either privately or at public auction.

"Commission merchant" means any person, who: (i) operates an auction market; (ii) receives farm products for sale on commission or contracts with the producer for farm products sold on commission or for a fee; (iii) accepts in trust from the producer for the purpose of sale; (iv) sells or offers for sale on commission; (v) solicits consignments of any kind of farm products; or (vi) handles the account of or as an agent of the producer any kind of farm products. No person shall be deemed to be an agent of the producer unless a specific price has been agreed upon by both parties before shipment or delivery by the producer for resale.

"Commission merchant" shall not include: (i) any cooperative corporation or association that is subject to the provisions of Article 2 (§ 13.1-312 et seq.) of Chapter 3 of Title 13.1; (ii) any association or organization of farmers, including produce exchanges, not incorporated under or subject to the provisions of Article 2 (§ 13.1-312 et seq.) of Chapter 3 of Title 13.1, organized and maintained by farmers for mutual help in the marketing of their produce and not for profit; (iii) any person buying vegetables, viticulture, or horticultural farm products for the purpose of reselling these products in dried, canned, or other preserved form; (iv) the sale of farm produce at public auction by a licensed auctioneer, acting as the agent of another to whom such farm produce is consigned; (v) the sale by sheriffs and other officers and fiduciaries and court officials; (vi) seed sold at retail; or (vii) persons licensed pursuant to the provisions of Article 3 (§ 3.2-4738 et seq.) of this chapter.

"Farm produce" or "farm products" means horticultural, viticulture, forestry, dairy, livestock, poultry, bee, and other products ordinarily produced on farms.

"Licensee" means any person who has been granted a license to operate, conduct, or carry on the business of a commission merchant.

Code 1950, § 3-534; 1966, c. 702, § 3.1-692; 1975, c. 505; 1977, c. 21; 2008, c. 860.

§ 3.2-4710. Certain activities exempt from article.

The provisions of this article shall not apply to: (i) the premises of any butcher, packer, or processor who receives livestock exclusively for immediate slaughter; (ii) farm sales; (iii) sales by 4-H clubs; or (iv) sales by livestock breeders' associations or by exposition societies.

Code 1950, § 3-534; 1966, c. 702, § 3.1-692; 1975, c. 505; 1977, c. 21; 2008, c. 860.

§ 3.2-4711. License required; application for license to be in writing; contents.

A. Every person who operates, conducts, or carries on the business of a commission merchant shall obtain a license.

B. Application for license shall be made to the Commissioner in writing, signed and sworn to by the applicant.

C. The application shall include:

1. The name of the locality where the business of commission merchant is to be conducted, the street and number of the building if practicable, and the nature of the products that will be handled by the applicant;

2. If made by a partnership, the full names of each of the partners comprising the partnership, and their respective addresses, and the firm or trade name under which the business is to be conducted;

3. If made by a corporation, whether it is domestic or foreign, the amount of its capital stock as provided in its articles of incorporation, the amount of its capital stock fully paid in, and the names of its officers and those persons authorized to receive and accept service of process and legal notices of all kinds for the applicant.

D. If requested by the Commissioner, an applicant shall demonstrate his character, responsibility, and good faith in seeking to carry on a commission merchant's business within the Commonwealth.

Code 1950, §§ 3-536, 3-537; 1966, c. 702, §§ 3.1-694, 3.1-695; 2008, c. 860.

§ 3.2-4712. Fee and bond to accompany license.

Applications shall be accompanied by a license fee of $10, and a good and sufficient bond, approved by the Commissioner, in the amount of $3,000 for all applications other than for livestock auction markets, in which case the application, together with the fee, shall be accompanied by a bond in the sum of $5,000, when the average daily gross commission business is $5,000 or less, with $1,000 added to the bond for each additional $5,000 average daily gross commission business done for the previous year with a maximum bond of $10,000 that entitles the applicant to a license to expire on December 31.

Code 1950, § 3-538; 1952, c. 387; 1966, c. 702, § 3.1-696; 2008, c. 860.

§ 3.2-4713. Applications for renewal licenses.

Each licensee shall renew his license. The renewal license shall expire one year from the date of expiration of the old license. The renewal application shall be accompanied by evidence of payment of the renewal premium continuing the bond in full force and effect, and the payment of a fee of $10 on or before the first day of January following the date of expiration of the previous license. All applications for renewal licenses shall be made in the same manner as application for original license.

Code 1950, § 3-539; 1966, c. 702, § 3.1-697; 2008, c. 860.

§ 3.2-4714. Disposition of sums received for licenses.

All sums received by the Commissioner for such license fees shall be paid into the state treasury to the credit of the general fund.

Code 1950, § 3-540; 1966, c. 702, § 3.1-698; 2008, c. 860.

§ 3.2-4715. Certified copy of license; fee; posting of license during sale periods.

A certified copy of an issued license may be obtained by the holder of the original upon payment of a fee of $1, and the original or a certified copy of the license shall be posted during sale periods in a conspicuous place on the premises where the business is conducted.

Code 1950, § 3-553; 1966, c. 702, § 3.1-711; 2008, c. 860.

§ 3.2-4716. Bond not required for certain auction sales of livestock.

No bond shall be required of any person operating a livestock auction market or stockyard that has been posted by the U.S. Department of Agriculture and is being operated under and pursuant to the terms and provisions of the Packers and Stockyards Act of 1921 (42 Stat. 159), as amended.

Code 1950, § 3-541; 1960, c. 250; 1966, c. 702, § 3.1-699; 2008, c. 860.

§ 3.2-4717. Agreements with U.S. Department of Agriculture; powers and duties of Commissioner as to bonds filed with U.S. Department of Agriculture.

The Commissioner may enter into agreements with the U.S. Department of Agriculture as are necessary to effectuate the purposes of the Packers and Stockyards Act of 1921 (42 Stat. 159), as amended. The Commissioner may act as trustee of the bonds or other security filed with the U.S. Department of Agriculture, and in such capacity the Commissioner may: (i) settle, allow or reject claims arising against the bonds or other security; (ii) rely on the investigative reports and recommendations of the U.S. Department of Agriculture; and (iii) use the administrative powers and processes of this article to settle claims. The Commissioner may institute and prosecute suits or actions in the name of the Commonwealth on behalf of claimants known and approved by the Commissioner in any appropriate court. The Commissioner may appeal a decision of any court that is contrary to any distribution recommended or authorized by him.

1976, c. 44, § 3.1-699.1; 1985, c. 354; 2008, c. 860.

§ 3.2-4718. Execution and terms of bond; action thereon.

The bond shall be executed by the applicant as principal and by a surety company qualified and authorized to do business in the Commonwealth as surety or by such personal surety as may be approved by the circuit court of the locality where the applicant resides or has his principal office. The bond shall be conditioned upon compliance with the provisions of this article and upon the faithful and honest handling of farm products in accordance with the terms of this article. The bond shall be to the Commonwealth in favor of every consignor of farm products. Any consignor of farm products claiming to be injured by the fraud, deceit or negligence of any commission merchant may bring action upon the bond against either the principal, or the surety, or both in an appropriate court to recover the damages caused by such fraud, deceit or negligence, or the failure to comply with the provisions of this article, or to make prompt and accurate settlement with the consignor.

Code 1950, § 3-542; 1966, c. 702, § 3.1-700; 2008, c. 860.

§ 3.2-4719. Duties and powers of Commissioner with respect to bonds.

The Commissioner may accept the proceeds from any bond and deposit the proceeds in the state treasury at interest in favor of the bond claimants. The Commissioner may institute and prosecute suits or actions in the name of the Commonwealth on behalf of claimants approved by him in any appropriate court for any purpose in connection with the collection or distribution of the bond or its proceeds. It shall be the duty of any person having a claim against a commission merchant to notify the Commissioner of his claim. The Commissioner shall have no duty to prosecute any claim unless he has received such notice and believes the claim is valid. If the Commissioner believes the claim to be invalid, he shall notify the claimant. The claimant shall then have his remedy pursuant to § 3.2-4718. The Commissioner may appeal a decision of any court that is contrary to any distribution recommended or authorized by him.

1985, c. 354, § 3.1-700.1; 2008, c. 860.

§ 3.2-4720. Schedule of commissions and charges to be filed.

The applicant shall file with the Commissioner at the time of furnishing the bond a schedule of his maximum commissions and charges for service in connection with the produce handled on account of or as agent for the parties. Such commissions and charges shall not be changed for one year thereafter, except by a written contract between the commission merchant and the consignors of farm products. A person operating a livestock auction market or stockyard that has been posted by the U.S. Department of Agriculture and is being operated pursuant to the provisions of the Packers and Stockyards Act of 1921 (42 Stat. 159), as amended, may change his schedule of maximum commissions and charges if such changes are filed with the U.S. Department of Agriculture and are approved. These changes shall be posted with the Commissioner.

Code 1950, § 3-543; 1966, c. 702, § 3.1-701; 1968, c. 306; 2008, c. 860.

§ 3.2-4721. Investigation of transactions by Commissioner.

The Commissioner, upon the verified complaint of any interested party shall, or upon his own motion may, investigate:

1. Any transaction involving solicitation, receipt, sale, or attempted sale of farm products by any person acting or attempting to act as a commission merchant;

2. The failure of any commission merchant to make proper and true account of sales and settlement as required in this article;

3. Any transaction in which produce consigned to a commission merchant is disposed of to a person composed substantially of the same persons as stockholders, members, or others, who compose the commission merchant;

4. The intentional making of false statements by a commission merchant as to condition, grade, or quality of any farm products received or in storage;

5. The intentional making of false statements by a commission merchant as to market condition;

6. The failure of any commission merchant to make payment for farm products within the time required by this article; or

7. Any other injurious transaction arising out of the sale of farm produce on commission.

Code 1950, § 3-544; 1966, c. 702, § 3.1-702; 2008, c. 860.

§ 3.2-4722. Complaint to Commissioner by consignor; Commissioner's action.

A. When a consignor of farm products to a commission merchant files a complaint with the commission merchant within 90 days after date of sale, and has failed to obtain a satisfactory settlement of the complaint within 10 days after the filing of the complaint, a complaint setting forth the facts may be filed with the Commissioner, who shall undertake a settlement of the matter.

B. If the Commissioner is unable to settle the matter to the satisfaction of the parties involved, within a reasonable time, he shall, after giving the parties at least five days' notice as to time and place, proceed to hear evidence concerning the matter. The hearing shall occur in the city or town where the business of the commission merchant is located or where the transaction complained of occurred, or at the option of the parties, in such other place as they may mutually agree. The Commissioner shall either dismiss the complaint or enter an order against the commission merchant to afford the consignor relief. Any such order shall be complied with within the time specified by the Commissioner but shall not be less than five days.

Code 1950, §§ 3-545, 3-546; 1966, c. 702, §§ 3.1-703, 3.1-704; 1976, c. 164; 2008, c. 860.

§ 3.2-4723. Right of entry; administration of oaths; testimony.

The Commissioner may:

1. Conduct investigations relative to the complaint or matter being investigated, and he shall have at all times unimpeded access to all buildings, yards, warehouses, storage and transportation facilities in which any farm products are kept, stored, handled, or transported;

2. Administer oaths and take testimony, and issue subpoenas requiring the attendance of witnesses before him, together with all books, memoranda, papers, and other documents, articles or instruments; and

3. Compel the disclosure by witnesses of all facts known to them relative to the matters under investigation.

Code 1950, §§ 3-547, 3-548; 1966, c. 702, §§ 3.1-705, 3.1-706; 2008, c. 860.

§ 3.2-4724. Grounds for refusal or revocation of license.

The Commissioner may refuse to grant a license, delay the issuance of a license, or revoke any license when he finds that:

1. A money judgment that has been entered against a commission merchant has not been satisfied;

2. False, fraudulent, or improper charges or returns have been made by the licensee for the handling, sale, or storage of farm products, or for the rendering of any related service;

3. The licensee has failed to render a true account of sales, or to settle promptly and within the time and in the manner required by this article;

4. The licensee has made false or misleading statements as to the grade, condition, quality or quantity of farm products received, handled, stored or held by him for sale on commission;

5. The licensee has made false or misleading statements as to market conditions;

6. There has been a combination to fix prices;

7. The licensee has, directly or indirectly, purchased for his or its own account farm products received by him or it, upon consignment, without prior authority from consignor in writing and at a fixed price agreed to by the consignor. This subdivision shall not apply to operators of livestock auction markets who are prohibited from purchasing consigned livestock under the federal Packers and Stockyards Act of 1921 (42 Stat. 159), as amended;

8. The licensee has made fictitious sales or has been guilty of collusion to defraud the consignor;

9. The licensee has reconsigned the farm products to another person without first obtaining the written consent of the consignor or written notice has not been given by the licensee to consignor that all or a part of the shipment was reconsigned;

10. The licensee sells farm products consigned to him or it, to another person owned or controlled by the licensee, or in which the licensee may have a financial or other interest, either directly or indirectly, and no notice has been given, in writing, to the consignor by the licensee that all or a part of such shipment was sold to a person in which the licensee has a financial or other interest;

11. The licensee was intentionally guilty of fraud or deception in the procurement of the license;

12. The licensee has failed to file with the Commissioner a schedule of his maximum commissions and other charges for services for the produce handled on account of or as agent of another as prescribed in this article, prior to the first day of February of each year;

13. The licensee has failed to obey and comply with any order of the Commissioner entered pursuant to the provisions of subsection B of § 3.2-4722 within the time specified in such order, or in the case of an appeal within 10 days of the time the Commissioner's order became final;

14. The licensee has failed to comply with any assurance the Commissioner has required pursuant to subsections C and D of § 3.2-4711; or

15. The licensee, his agents, contractors, or employees are guilty of violating any provision of this section.

Code 1950, § 3-551; 1966, c. 702, § 3.1-709; 1979, c. 389; 2008, c. 860.

§ 3.2-4725. Publication of revocation.

When a license is revoked, a notice of the revocation and the reason for the revocation shall be published once a week for two successive weeks in one or more daily papers selected by the Commissioner and the Department shall post notice of the revocation on its website for a period of two weeks from the date of the revocation.

Code 1950, § 3-552; 1966, c. 702, § 3.1-710; 2008, c. 860.

§ 3.2-4726. Failure to comply with orders of Commissioner constitutes contempt.

All parties disobeying the orders or subpoenas of the Commissioner are guilty of contempt and shall be certified to an appropriate court for punishment.

Code 1950, § 3-549; 1966, c. 702, § 3.1-707; 2008, c. 860.

§ 3.2-4727. Copies of papers in Commissioner's office as prima facie evidence.

Copies of all records, inspection certificates, certified reports and all papers on file in the office of the Commissioner shall be prima facie evidence of the matter contained.

Code 1950, § 3-550; 1966, c. 702, § 3.1-708; 2008, c. 860.

§ 3.2-4728. Appeal from orders and actions of Commissioner.

Any action of the Commissioner: (i) entering any order pursuant to subsection B of § 3.2-4722; (ii) refusing to grant a license; (iii) revoking a license already granted to a commission merchant; or (iv) refusing to renew a license, shall be subject to the right of appeal in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

Code 1950, § 3-554; 1966, c. 702, § 3.1-712; 1976, c. 164; 1986, c. 615; 2008, c. 860.

§ 3.2-4729. Records to be kept by commission merchant.

Every commission merchant, having received any farm products for sale on commission, shall promptly maintain a complete and true record, showing in detail the following with reference to the handling, sale, or storage of such farm products:

1. The name and address of the consignor;

2. The date received;

3. The condition, grade, and quantity on arrival;

4. The date of such sale for the account of the consignor;

5. The sale price;

6. An itemized statement of the charges to be paid by the consignor in connection with the sale;

7. A lot number or other identifying mark that shall appear on all sales tags or tickets or on any other essential records needed to show the sale price of the products; and

8. Records of auction sales of farm produce or farm products, including sales tags, tickets, or bills, which shall be sequentially numbered and each such sequentially numbered record shall be properly accounted for in the operations of the commission merchant. Any record that is altered shall bear the full signature of the person authorized to make, and who is responsible for, the alteration.

Code 1950, § 3-555; 1966, c. 702, § 3.1-713; 1979, c. 389; 2008, c. 860.

§ 3.2-4730. Detailed statements shall be kept of claims for overcharges or damages filed by commission merchant for consignor.

A detailed statement shall be kept of the filing of any claim that has or may be filed by the commission merchant against any person for overcharges or for damages resulting from the injury or deterioration of farm products by the act, neglect, or failure of such person. Such records shall be open for inspection by the Commissioner and the consignor of farm products for whom such claim is made. The money returns, if any, collections, or damages received by the commission merchant for and on behalf of consignor of farm products by reason of the overcharges, damages or deterioration shall immediately be paid to the consignor of farm products less charges for collection, in accordance with the schedule of charges filed under § 3.2-4720.

Code 1950, § 3-556; 1966, c. 702, § 3.1-714; 2008, c. 860.

§ 3.2-4731. Record and account, together with remittance for each sale, to be delivered to consignor.

A copy of the record and account of sales of farm products, together with remittances in full of the amount realized by such sales, less the agreed upon commissions and other charges, shall be delivered to the consignor upon the completion of the sale. All moneys received by the commission merchant in payment for any consignment of farm products, less the agreed upon commission and other charges, shall be paid to the consignor within 10 days after receipt of the moneys by the commission merchant, unless otherwise agreed in writing. The names and addresses of purchasers need not be given unless demanded in cases of complaint.

Code 1950, § 3-557; 1966, c. 702, § 3.1-715; 2008, c. 860.

§ 3.2-4732. Copies of records to be kept by commission merchant.

Every commission merchant shall retain a copy of all records, including sales tags or tickets, account of sales, or other records covering each transaction for a period of three years from the date of the transaction. The copy shall at all times be available for, and open to, confidential inspection by the Commissioner, and the interested consignor or his authorized representative.

Code 1950, § 3-558; 1966, c. 702, § 3.1-716; 1968, c. 306; 1979, c. 389; 2008, c. 860.

§ 3.2-4733. Certificate establishing condition, quality, and grade to be furnished by Commissioner in event of dispute.

If there is a dispute or disagreement between a consignor and a commission merchant arising at the time of delivery as to condition, quality, grade, pack, quantity or weight of any lot, shipment or consignment of farm products, the Commissioner shall furnish, upon the payment by the requesting party of the necessary expenses, a certificate establishing the condition, quality, grade, pack, quantity or weight of such lot, shipment, or consignment. The certificate shall be prima facie evidence in all courts of the Commonwealth as findings at the time such inspection was made. The burden of proof shall be upon the commission merchant to prove the correctness of his accounting as to any transaction that may be questioned.

Code 1950, § 3-559; 1966, c. 702, § 3.1-717; 2008, c. 860.

§ 3.2-4734. Duty of attorney for the Commonwealth.

It shall be the duty of the attorney for the Commonwealth to prosecute all violations of this article.

Code 1950, § 3-561; 1966, c. 702, § 3.1-719; 2008, c. 860.

§ 3.2-4735. Venue.

Civil suits and criminal prosecutions arising by virtue of any provision of this article may be commenced and tried in: (i) the city or county where the products were received by the commission merchant; (ii) the city or county where the principal place of business of the commission merchant is located within the Commonwealth; or (iii) the city or county where the violation occurred.

Code 1950, § 3-562; 1966, c. 702, § 3.1-720; 2008, c. 860.

§ 3.2-4736. License required.

A. It is unlawful for any person to act as, operate, or carry on the business of a commission merchant without first obtaining a license.

B. Any person who violates this section is guilty of a Class 1 misdemeanor.

Code 1950, § 3-535; 1966, c. 702, § 3.1-693; 2008, c. 860.

§ 3.2-4737. Offenses and punishment.

Any person who commits any of the following acts is guilty of a Class 1 misdemeanor:

1. Imposes false charges for handling or for services in connection with farm products;

2. Fails to account promptly, correctly, fully and properly and to make settlement as provided in this article;

3. Makes false and misleading statements as to market conditions with the intent to deceive;

4. Makes fictitious sales or collusion to defraud the consignor, or enters into any combination to fix prices;

5. Directly or indirectly purchases for his or its own account, farm products, received by him or it on consignment without prior authority from the consignor in writing. This subsection shall not apply to the operators of livestock auction markets who are prohibited from purchasing consigned livestock under the federal Packers and Stockyards Act of 1921 (42 Stat. 159), as amended;

6. Intentionally makes false statements as to grade, condition, markings, quality, or quantity of farm products shipped or packed;

7. Reconsigns farm products as have been consigned to him to another person, unless consent of the consignor has been first obtained in writing, or notice given in writing to the consignor by the licensee that all or a part of such shipment was reconsigned;

8. Sells farm products consigned to him to another person owned or controlled by him, or in which the licensee may have a financial or other interest, either directly or indirectly, unless notice is given, in writing, to the consignor by the commission merchant that all or a part of such shipment was sold to a person in which the licensee has a financial or other interest;

9. Fraudulently or deceptively obtains a license;

10. Fails or neglects to give written notice immediately to the Commissioner and the surety on the bond of the commission merchant, of any changes or alterations in the style, name or personnel of the person to whom such license has been issued; or

11. Fails to comply with the provisions of this article.

Code 1950, § 3-560; 1966, c. 702, § 3.1-718; 1979, c. 389; 2008, c. 860.