Chapter 11 - Buying, Selling And Storing Of Grain
CHAPTER 11 - BUYING, SELLING AND STORING OF GRAIN
11-11-101. Definitions.
(a) As used in this chapter:
(i) "Director" means the director of the Wyomingdepartment of agriculture;
(ii) "Warehouseman" means any person except the growerwho handles grain for commercial storage or solicits grain for the purpose ofintrastate, interstate or foreign commerce;
(iii) "Grain" means any variety of beans, wheat, corn,oats, barley, rye, grain sorghum, millet, oil seeds, sunflower, soybean, flax,or seeds of legumes and grasses;
(iv) To "store" or "warehouse" means anymethod by which grain owned by another is held for the owner by one not theowner except for the transportation thereof;
(v) "Stored grain" means grain held or placed instorage in an elevator, grain cleaning plant, grain warehouse or publicwarehouse of whatever kind by any person not the actual bona fide owner of thegrain;
(vi) "Scale ticket" means a load slip or otherevidence of delivery, other than a warehouse receipt, given to the party makingdelivery by a warehouse licensed under the provisions of this act;
(vii) "Warehouse" means an elevator, mill, storage binor building, subterminal grain storage facility, public storage facility orother structure or facility in which grain is received for commercial storageor for the purpose of intrastate, interstate or foreign commerce;
(viii) "Audit" means an examination of records orfinancial accounts to determine their accuracy;
(ix) "Depositor" means any person who is in possessionof a commodity and entrusts or delivers the commodity to a warehouse forstorage;
(x) "Inspection" means the physical review orexamination of the grain warehouse or storage facility and may include anofficial audit;
(xi) "Loss" means the destruction of the commodity dueto fire, theft or weather;
(xii) "Receipt" means a warehouse receipt issued underthis act, including an electronic receipt;
(xiii) "Transportation" means the movement of grain fromone (1) point to another;
(xiv) "Verified" means signed and sworn to be accuratebefore a person authorized to administer oaths.
11-11-102. Applicability.
W.S. 11-11-101 through 11-11-117 do notapply to any person licensed under the laws or regulations of the United Statesrelating to storing and handling grain.
11-11-103. Warehousemen to procure licenses; fee; annual renewal.
Before engaging in business in Wyoming, awarehouseman or any person operating a warehouse shall procure a license fromthe department of agriculture. The fee under this section for the initiallicense and for each annual renewal thereof shall be one hundred twenty-fivedollars ($125.00). All licenses shall be issued for the fiscal year, orfraction thereof, ending June 30. No license shall be renewed unless thedepartment finds from the audit required under W.S. 11-11-109 of the warehouseor warehouseman's records that the operations are conducted properly.
11-11-104. Application for license; form; contents; refusal to issuelicense; appeal; care of agricultural products.
(a) The department shall prescribe forms for application for awarehouseman's or warehouse license. The application shall contain informationnecessary to inform the department of the qualifications, facilities,experience and financial ability of the applicant to carry on the business ofbuying, selling, warehousing and storing grain. The department shall requirethe submission of any tax return, bank statement, financial statement or auditprepared by a public accountant or a certified public accountant and anyadditional information as required by rules and regulations in order toestablish the financial responsibility of the applicant. If a license isrefused by the department, appeal may be made to the director. All hearingsfor appeal shall be conducted in accordance with the Wyoming AdministrativeProcedure Act.
(b) Each warehouseman shall at all times, including during anyperiod of suspension of his license, exercise such care in regard to stored andnonstorage agricultural commodities in his custody as required under thelicensing agreement.
11-11-105. Surety bond required; amount; approval by department;conditions; exception.
(a) Each applicant for a warehouseman's or warehouse licenseshall post a cash bond, acceptable irrevocable letter of credit or execute andfile with the department a good and sufficient surety bond in an amountdetermined by the department based on the maximum number of hundred weight thewarehouseman can store in the warehouses for which the bond is required, butnot less than twenty thousand dollars ($20,000.00). A surety bond shall beexecuted by a responsible surety company licensed to do business in this stateand conditioned upon the faithful performance of the obligation of thewarehouseman or person operating a warehouse under the laws of this state andof any additional obligations assumed by him under contract with those whodeposit grain with him. All bonds shall be payable to the state for thebenefit of any injured party, and shall be in the form and contain additionalconditions as the department may prescribe. No person is required to file abond who has already posted similar bond with the United States department ofagriculture pursuant to the United States Warehouse Act of August 11, 1916, asamended.
(b) Cash bonds, irrevocable letters of credit and surety bondsshall not be released by the department until an audit has been completed andsatisfied. The department shall publish a public notice for sixty (60) daysprior to any bond being released.
(c) In the event a warehouseman does not renew his license inaccordance with W.S. 11-11-103 or suspends normal business operations, thedepartment shall post a public notice in a paper of local distribution forsixty (60) days prior to the closure of the warehouse.
11-11-106. Action on bond for breach of obligations; joinder ofparties.
Any person injured by the warehouseman's orwarehouse's breach of any obligation provided by law may sue on the bond in hisown name in any court of competent jurisdiction to recover the damage sustainedby the breach. Where more than one (1) person is injured, the action may bebrought in the name of all injured persons by any one or all interestedparties, or by the state of Wyoming in their behalf.
11-11-107. Investigation by department; complaint; service; hearing.
The department upon its own motion or uponverified complaint against any warehouseman shall investigate as thedepartment deems necessary, and shall at all times have free and unimpededaccess to all facilities or places in which grain is kept, stored, handled ortransported. If the department, upon investigation, has reason to believe thatany warehouseman is not acting as required by law, or upon the filing of averified complaint against the warehouseman, the department shall have acomplaint or copy of the verified complaint served upon the warehouseman bypersonal service, service upon a registered agent or by registered mail. Ifthe warehouseman fails to make prompt adjustment or settlement of the chargesset forth, to the satisfaction of the department, the department shall givenotice of the time and place of a hearing thereon. The hearing shall be heldin accordance with the Wyoming Administrative Procedure Act.
11-11-108. Warehouse receipts generally.
All warehouse receipts issued for storedgrain shall be in a form prescribed by the department and shall be obtainableonly by the warehouseman from the department at cost. Each warehouse receiptissued must show the amount of any cash or the value of any merchandise thewarehouseman has advanced on the grain represented by the receipt, but such notationshall not be construed as fixing the date of sale of the grain.
11-11-109. Audit of records; inspection of warehouse.
(a) At least once each year and more often if necessary or ifrequested by an interested person the department shall inspect each licensedwarehouse and shall audit the warehouse records. The director after conferringwith interested industry groups shall fix, assess and collect fees for theinspection of facilities storing farm products. The fees shall not exceedfifty percent (50%) of the cost of the inspection and shall be paid by theperson requesting the inspection, if any.
(b) If a warehouseman is delinquent in renewing his license inaccordance with W.S. 11-11-103, the department shall initiate an inspection andaudit of the warehouse immediately.
11-11-110. Warehouseman's records; generally.
Every licensed warehouseman shall maintaincomplete records of all grain stored, all grain withdrawn from storage, allwarehouse receipts issued and all receipts returned to and cancelled by him. The records shall be available for examination and audit by the department atany reasonable time.
11-11-111. Warehouseman's records; contents; inspection and audit bydepartment; issuance of warehouse receipts.
(a) Every warehouseman shall keep a complete record of allgrain handled by him including the following:
(i) Name, address and phone number of the grower and of theowner;
(ii) Date of issuance of receipt;
(iii) Kind, quantity, quality and grade of grain received;
(iv) Agreed purchase price, if purchased;
(v) Agreed commission charged, if consigned;
(vi) Date of sale of consigned grain, to whom sold and price forwhich sold;
(vii) Date and details of settlement with vendor or consignor;
(viii) Documentation stating the location of the storedcommodity. If the commodity is stored in another warehouse, then proof ofbonding by that facility shall be included in the records.
(b) The above records shall be open to the confidentialinspection of the department or its authorized agents at all times. Uponrequest of the depositor, every warehouseman shall issue a receipt for allgrain received for storage on a form furnished by the department.
11-11-112. Stored grain to be insured; insurance requirements; disasterloss to be reported.
(a) All grain stored shall be insured against loss for fullvalue by an insurance company licensed to do business in this state. A copy ofthe insurance policy in effect shall be provided to the department at the timeof the license application and the audit.
(b) Each warehouseman shall comply fully with the terms ofinsurance policies or contracts covering their warehouse and all productsstored therein, and shall not commit any acts, nor permit others to commit anyacts, that might impair or invalidate such insurance.
11-11-113. Grading of grain; notation on warehouse receipt.
All grain accepted for storage shall begraded by the warehouseman or designee according to standards of the UnitedStates department of agriculture, and the grade established shall be specifiedupon the warehouse receipt issued for the grain.
11-11-114. Stored grain to constitute bailment; amount in storage toequal issued storage certificates; exceptions; conversion; seizure.
(a) The storage of grain with a warehouse and the movement ofgrain by a warehouseman constitutes a bailment and not a sale. Upon return ofthe scale ticket bearing the name of the bailee or warehouse receipt properlyendorsed and payment or tender of all advances and charges, the owner of thescale ticket or warehouse receipt is entitled to, and the warehouseman orperson operating a warehouse shall deliver the identical grade and amount ofgrain placed in storage or transported. Every person operating a warehouse shallmaintain at all times in storage, in the state of Wyoming, grain equal inamount and grade to all scale tickets and warehouse receipts issued, unlessauthorized in writing by holders of scale tickets or warehouse receipts or bythe department to move to other storage, and failure to do so is a conversionthereof.
(b) Grain stored with a warehouse is not liable to seizure uponprocess of a court against the bailee except upon action by the owners of scaletickets or warehouse receipts to enforce the terms of the scale tickets orreceipts. In the event of the failure or insolvency of the bailee, the grainshall be first applied as soon as ownership is established and within onehundred twenty (120) days exclusively to the redemption and satisfaction of outstandingscale tickets and warehouse receipts for grain stored or moved with the baileeand grain on hand in a particular warehouse of the bailee shall be firstapplied to the redemption and satisfaction of the scale tickets or receiptsissued by that warehouseman or person operating a warehouse as the bailee.
(c) The department shall, by rule and regulation, requireposting of current tariffs.
11-11-115. Disposition of collected funds.
There is created the grain warehouseinspection account. All funds collected by the department shall be deposited inthe account created by this section. Interest earned by the account shall beretained in the account. The account is appropriated for use and expenditure bythe department for the costs of administering the programs under this article.Itemized vouchers shall be submitted to the department for approval. Uponapproval, a warrant for the payment of each voucher shall be issued by thestate auditor for payment from the grain warehouse inspection account.
11-11-116. Revocation and cancellation of license.
Failure of any warehouseman or personoperating a warehouse to comply with the provisions of this chapter will renderthe license of the warehouseman or person operating a warehouse subject torevocation and cancellation by the department.
11-11-117. Prohibited acts; penalties for violations.
(a) Any person who engages in or carries on any grainwarehousing business without first having obtained a license, or who continuesto engage in or carry on such business after his license has been suspended,revoked or expires is guilty of a misdemeanor and shall be fined not less thanone hundred dollars ($100.00) nor more than five hundred dollars ($500.00) foreach offense. Each day that such unlicensed business is carried on is aseparate offense.
(b) Any warehouseman or person operating a warehouse whoconverts to his own use or that of another, any grain stored or accepted forstorage of the value of one thousand dollars ($1,000.00) or more, is guilty ofa felony and shall be fined not less than five hundred dollars ($500.00) foreach day of violation and imprisoned for not to exceed fourteen (14) years. Ifthe value of the grain converted is less than one thousand dollars ($1,000.00),the warehouseman or person operating a warehouse is guilty of a misdemeanor andshall be fined not to exceed five hundred dollars ($500.00) or imprisoned notto exceed six (6) months, or both.
11-11-118. Perjury.
Any affirmation under this chapter shall begiven under penalty of perjury.
11-11-119. Cease and desist orders; warehousemen; notice; opportunityfor hearing.
(a) After notice and opportunity for hearing, the departmentshall issue a final cease and desist order to a warehouseman if thewarehouseman or any officer, director, employee or agent of the warehouse isviolating any state statute or rule relating to warehouses or warehousemen.
(b) Before issuing a final cease and desist order, thedepartment shall serve notice of intent to issue the order upon the warehouseman. The notice shall be in writing and shall contain the information required byW.S. 11-11-121(a). The proposed order shall direct the warehouseman todiscontinue the violations of law, rule or regulation.
(c) The warehouseman may request a hearing on the proposedorder before the director in accordance with W.S. 11-11-121(b). If thewarehouseman does not request a hearing in writing within the prescribed timeperiod, the proposed order shall become a final cease and desist order and thedepartment shall serve the final order upon the warehouseman.
11-11-120. Temporary cease and desist order; warehousemen; service.
(a) If the department believes the actions of a warehouseman orof any officer, director, employee or agent of the warehouse pose an immediatethreat to the safety and soundness of the warehouse or to the interests of thedepositors or creditors of the warehouse, the department shall issue atemporary cease and desist order to the warehouseman or officer, director,employee or agent of the warehouse pending final action on the proposed ceaseand desist order issued pursuant to W.S. 11-11-119(a).
(b) The temporary order shall be in writing and shall be servedupon the warehouseman. The temporary order shall take effect upon service andshall remain in effect until the director issues the final cease and desistorder, the department dismisses the proposed cease and desist order or a courtof competent jurisdiction dismisses the proposed cease and desist order afterhearing.
(c) On or after the effective date of the temporary order, theattorney general, upon request from the department, may apply to the districtcourt for the county in which the warehouse is located for enforcement of thetemporary order. If the warehouseman operates warehouses in two (2) or morecounties, the request may be made in any county where the warehouseman operatesa warehouse. The application for enforcement shall be given precedence overother cases pending in court and shall in every way be expedited.
(d) The warehouseman, officer, director, employee or agent towhom a temporary cease and desist order is issued may apply to the districtcourt for the county in which the warehouse is located for a stay of thetemporary cease and desist order. The application for stay shall be givenprecedence over other civil cases pending in court and shall be expedited. Thecourt shall grant the stay only if the warehouseman, officer, director,employee or agent shows he will be irreparably harmed unless the stay issuesand there is substantial likelihood he will prevail on the merits.
11-11-121. Procedures for enforcement actions; service of notice;content of orders; contested case proceedings; appeal.
(a) All notices and orders required to be served by the departmentunder this article shall be served by certified mail return receipt requestedto the last known address of the warehouseman or may be served as provided bythe Wyoming Rules of Civil Procedure. Notice of a proposed order issued by thedepartment under this article shall include:
(i) A statement of the grounds for issuing the proposed order,including a citation to the statute or rule involved;
(ii) A statement of the facts in support of the allegations;
(iii) A statement informing the warehouseman subject to theproposed order of the right to a hearing on the order before the director,right of appeal of any subsequent order in accordance with the WyomingAdministrative Procedure Act and that failure to timely request a hearing willresult in the order becoming final; and
(iv) A copy of the proposed order.
(b) A request for hearing on a proposed order issued by thedepartment under this article shall be in writing and shall be submitted to thedirector no later than seven (7) days after receipt of the notice of intentfrom the department. The director shall hold the hearing no later than fifteen(15) days after receipt of the request for hearing, unless the warehousemansubject to the proposed order requests an extension of time for good causeshown.
(c) A hearing on a proposed order issued under this articleshall be a contested case hearing conducted in accordance with the WyomingAdministrative Procedure Act. After the hearing, the director shall issuefindings of fact and conclusions of law and a final decision either confirmingor dismissing a proposed order. The director shall confirm a proposed orderonly if the director finds by a preponderance of the evidence that groundsexist under this article for issuing the order. Otherwise, the director shalldismiss the proposed order. If the director confirms a proposed order it shallbecome a final order.
(d) The department shall serve a final order under this articleupon the warehouseman who is the subject of the order. The final order shalltake effect upon service and shall remain in effect until the department or thecourt terminates the final order. The warehouseman who is the subject of theorder may appeal the issuance of a final order in accordance with the WyomingAdministrative Procedure Act.
(e) On or after the effective date of a final order under thisarticle, the attorney general, upon request from the department, may apply tothe district court of the county in which the warehouse is located forenforcement of the final order. The application for enforcement shall be givenprecedence over other cases pending in court and shall in every way beexpedited.