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Full text of "AGRICULTURE DECISIONS VOL 44 NO3"

UNITED STATES DEPARTMENT OF AGRICULTURE 




DECJSIONS OF THE SECRETARY OF AGRICULTURE 



ISSUED UNDER THE 



REGULATORY LAWS ADMINISTERED BY THE 



UNITED STATES DEPARTMENT OF AGRICULTURE 



(Including Court Decisions) 




VOL. 44 NO. 3 



PAGES 1121-1455 



MAY-JUNE 1985 



Compiled And Published By: 

Editor, Agriculture Decisions 
Hearing Clerk Unit 

Office Of Administrative Law Judges 
U.S. Department Of Agriculture 
Room 1079 South Building 
Washington, D.C. 20250 



PREFATORY NOTE 

It is the purpose of this official publication to make available to 
the public, in an orderly and accessible form, decisions issued 
under regulatory laws administered by the Department of Agricul- 
ture. 

The decisions published herein may be described generally as de- 
cisions which are made in proceedings of a quasi-judicial character, 
and which, under the applicable statutes, can be made by the Sec- 
retary of Agriculture, or an officer authorized by law to act in his 
stead, only after notice and hearing or opportunity for a hearing 
These decisions do not include rules and regulations of general ap- 
plicability which are required to be published in the Federal Regis- 
ter. 

The principal statutes concerned are the Agricultural Marketing 
Act of 1946 (7 U.S.C. 1621 et seq.), the Agricultural Marketing 
Agreement Act of 1937 (7 U.S.C. 601 et seq.), the Animal Quaran 
tine and Related Laws (21 U.S.C. Ill et seg.), the Animal Welfare 
Act (7 U.S.C. 2131 et seq.), the Federal Meat Inspection Act (21 
U.S.C. 601 et seq,), the Grain Standards Act (7 U.S.C. 1821 et sea) 
the Horse Protection Act (15 U.S.C. 1821 et seq.), the Packers and 
Stockyards Act, 1921 (7 U.S.C. 181 et seq.), the Perishable Agricul- 
tural Commodities Act, 1930 (7 U.S.C. 499a et seq.), the Plant Quar- 

! n ??o e i^o ( I U ' aC> 161 et Seg ' } > the Poultr * Prod ^ts Inspection 
Act Ul U.S.C. 451 et seq,), and the Virus-Serum-Toxin Act of 1913 
(21 U.S.C. 161-158). 

The decisions published herein are arranged alphabetically by 
statute and within the statute section by date of issue or date the 
decision became final after expiration of the appeal period. They 
may be cited by giving the volume and page, for illustration, 1 A.D. 
472 (1942). It is unnecessary to cite the docket or decision number. 
Prior to 1942 the Secretary's decisions were identified by docket 
and decision numbers, for example, D-578; S. 1150. Such citation of 
a case in these volumes generally indicates that the decision is not 
published in Agriculture Decisions. 

Current court decisions involving the regulatory laws adminis- 
tered by the Department of Agriculture are published herein. 



111 



TABLE OF CONTENTS 

MAY-JUNE 1985 

PACK 
LIST OP DECISIONS REPORTED, MAY-JUNE 1985 im 

AGRICULTURAL MARKETING AGREEMENT ACT, 1937 U32 

ANIMAL QUARANTINE AND RELATED LAWS im 

ANIMAL WELFARE ACT 

1167 

PACKERS AND STOCKYARDS ACT 

DISCIPLINARY DECISIONS im 

PERISHABLE AGRICULTURAL COMMODITIES ACT 
COURT DECISIONS 



PLANT QUARANTINE ACT 



............................................................................................. 1224 

DISCIPLINARY DECISIONS .............................. 

....................................................... lilil 

REPARATION DECISIONS .................... 



REPARATION DEFAULT DECISIONS .................................................................. 1403 



SUBJECT INDEX, MAY-JUNE 1985 ........................................................................... 1450 



NOTE 

A list of decisions reported and a subject index are published in each issue of Ag- 
riculture Decisions. A list of decisions reported and a subject index for the volume 
or calendar year are published in the November-December issue 



LIST OF DECISION REPORTED 1121 



MAY-JUNE 1985 

AGRICULTURAL MARKETING ACT OF 1937 PAGE 

AGRICULTURAL MARKETING AGREEMENT ACT. 1937 

SEQUOIA ORANGE Co. INC. AMA Docket No. PV907-11. Dismissal 1132 

ANIMAL QUARANTINE AND RELATED LAWS 

BAAS, CHARLES. AQ Docket No. 143. Decision And Order 1163 

BOYDSTON, DEWEY L, AQ Docket No. 169. Consent Decision 1159 

BURQESS, KENNETH. AQ Docket No. 19. Consent Decision 1165 

CAVICCHIO, ROBERT. AQ Docket No. 115. Consent Decision 1135 

CHASTAIN, ROBERT E. JR. AQ Docket No. 62. Decision And Order 1141 

Doss, JIM, RONALD 0. EHRLICH and Dn. PHILLIP SMITH. AQ Docket No. 

136. Consent Decision 1147,1151 

EASON, J.W. JR. and JOE PAYNE. AQ Docket No. 125. Consent Decision. 1155 

ESH, JOHN E. AQ Docket No. 153. Consent Decision 1156 

HOFFMAN, GARY and AMERICAN FEEDER PIG CO-OP. AQ Docket No. 99, 

Dismissal 1166 

MAYES, ELMO. AQ Docket No. 34. Default 1152 

MIMS MEAT Co. INC. and DONALD LYNN BUSH. AQ Docket No. 13. Con- 
sent Decision 1145 

MINO, LARRY, d/b/a R&M FEEDER PIG COMPANY. AQ Docket No. 128. 

Default 1148 

O'CONNOR, MICHAEL. AQ Docket No. 119. Consent Decision 1137 

PLANTE, EDWARD and WILFRED d/b/a WILFRED PLANT FORM. AQ 

Docket No. 57. Consent Decision 1143 

RAFFELI, BECK Jo. AQ Docket No. 87. Consent Decision 1144 

ROY TROUT AND SON INC. AQ Docket No. 162. Consent Decision 1158 

SMITH, P.J. AQ Docket No. 155. Consent Decision 1134 

SPREWELL, FRED. AQ Docket No. 144. Consent Decision 1139 

STOLTZFUS, JONATHAN. AQ Docket No. 151. Decision And Order 1161 

ANIMAL WELFARE ACT 

AMERICAN AIRLINES. AWA Docket No. 326. Consent Decision 1167 

HENDERSON, J.M. and C.L. HENDERSON. AWA Docket No. 349. Consent 

Decision 1170 

PRICHARD, A,J. AWA Docket No. 335. Consent Decision 1169 

PACKERS AND STOCKYARDS ACT 

Bono, RICKEY. P&S Docket No. 6507. Consent Decision 1199 

BROWN, W.M., d/b/a W.M. BROWN CATTLE Co. P&S Docket No. 6642. 

Consent Decision 1186 

COLE, EDDY E. P&S Docket No. 6464. Consent Decision 1182 

CLOVIS LIVESTOCK MARKET INC. P&S Docket No. 6494. Consent Deci- 
sion " 1210 

CORDELE LIVESTOCK COMPANY, and ROGER BLANCHARD. P&S Docket 
No. 6622, Consent Decision 1184 



1122 LIST OP DECISION REPORTED 



PACKERS AND STOCKYARDS ACT-Cont. 



PAGE 



1213 

1208 

J 



Co. 

HALE, RICHARD. P&S Docket No76219] Consent Decision ^ 

HORTON, JOHNNY. P&S Docket No. 6443. Consent Decision"" 
.ARTHUR JR. P&S Docket No. 6509. Consent Decision H75 

DICKIE JOE. P&S Docket No. 6508. Consent Decision "- 

Appe'al!!..!;..!.^ D Cket NO " 6248 ' <*** W^'uto 

PHP T^m/n-Ptu/ A no_ci T^ . . -E* ^ .^ . """""""<'". ..nn.. P. 



REEC E TOOTHY 



Docket No. 6431. Consent Decision .. 

" " 



Docket 



, J.B. J R 



n 



M T 

Do - p&s Dota 6 ' Decision - 
and JAN - 

Docket ' 



1176,1194 



PERISHABLE AGRICULTURAL COMMODITIES ACT 1930 
COURT DECISION: 



; Case No. S8W02M- 
DISCIPLINARY DECISIONS- 



1231 



LIST OF DECISION REPORTED 1123 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 
DISCIPLINARY DECISIONS-Cont. PAGE 

HOWARD WOOD PRODUCE COMPANY. PACA Docket No. 2-G798. Consent 
Decision 1251 

MAGIC CITY PRODUCE COMPANY, INC. PACA Docket No. 2-6448. Appeal 1241 

RINELLA'S WHOLESALE, INC. a/t/a RINELLA'S WHOLESALE, FRUIT and 
PRODUCE INC. PACA Docket No. 2-6G95. Decision And Order 1233 

RINELLA'S WHOLESALE INC., a/t/a RINELLA'S WHOLESALE FRUIT AND 
PRODUCE INC. PACA Docket No. 2-6695. Order Denying Petition 
For Reconsideration 1234 

RINELLA'S WHOLESALE INC., a/t/a RINELLA'S WHOLESALE FRUIT AND 
PRODUCE INC. Docket No. 2-6695. Appeal To The Secretary of Agri- 
culture 1240 

REPARATIONS DECISION: 

ABATTI PRODUCE v. C.H. ROBINSON COMPANY. PACA Docket No. 2- 
6457. Order On Reconsideration , 1398 

APPLE SALES INC. v. CITY WIDE DISTRIBUTORS INC. PACA Docket No. 2~ 
6423. Order On Reconsideration 1396 

EELDRIDGE PACKING Co. v. FIRST QUALITY FRUIT AND PRODUCE Co. INC., 
and/or C.H. ROBINSON COMPANY. PACA Docket No. Order On Re- 
consideration 1373 

BORELLI PRODUCE DISTRIBUTORS v. CITY WIDE DISTRIBUTORS INC. PACA 
Docket No. 2-6488. Order On Reconsideration 1389 

THE BRINGS Co. v. HHDLICKA DAIRY CATTLE INC. a/t/a HRDLICKA Bnos. 
PRODUCE Co. PACA Docket No. 2-6684. Decision And Order 1357 

BRYANT PACKING Co. w. M. OFFUTT Co. INC. and ADOLPH B. CIMINO Co. 
PACA Docket No. 2-6518. Order Upon Reconsideration 1374 

BUSHMANS POTATO SALES w. IDEAL FOODS INC. PACA Docket No. 3- 
6626. Stay Order 1377 

C.A. MILOSLAVICH v. FRUTAS DEL VALLE DE GUADALUPE, S.A. JUGOS DE 
VALLE SA, and H.J. HEINZ Co. PACA Docket No. 2-6438. Stay 
Order 1375 

CAAMANO BROS. INC. v. LA RUE FOOD CORP. PACA Docket No. 2-6567. 
Stay Order 1376 

CHAPMAN FRUIT Co. v. TIH-STATE AGENCY. PACA Docket No. 2-6641. 
Decision And Order , 1365 

COASTAL BERRY CORPORATION v, HOVERSON & SON and/or GEORGALOS 
DISTRIBUTING Co., INC. Decision And Order 1300 

CORKY FOOD CO-OP o. NORMAN M. COFFIN INC. PACA Docket No. 2- 
6516. Stay Order 1376 

DENICE AND FELICE PACKING Co. u. WEST COAST PRODUCE SALES INC. 
PACA Docket No, 2-6797. Reparation Order 1330 

DMB PACKING CORP. a/t/a DIMARE BROS. INC. OF CALIFORNIA v, 
GARDEN PRODUCTS INC. PACA Docket No. 2-6645. Decision And 
Order 1304 

FRONTIER PACKING Co. v. GILARDI TRUCK AND TRANSPORTATION INC. 
PACA Docket No. 2-6592. Decision And Order 1309 



1124 LIST OF DECISION REPORTED 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 

REPARATIONS DECISION-Cont. 

PAGE 

FRUIT DISTRIBUTING CORPORATION v, GARY D. HARNEV, d/b/a GARY D 
HARNEY COMPANY. PACA Docket No, 2-6502. Decision And Order 1331 

GARIN COMPANY, THE, v. NASH-DE-CAMP COMPANY. PACA Docket No 
2-6308. Decision And Order ................................................ ' 12g3 

GAR.N Co., THE, v. ED GIVEN INC. PACA Docket No"2-662i"Dimii" 1359 

GEORGIA VEGETABLE Co. INC. v. EMERSON H. ELLIOTT d/b/a EMERSON 
ELLIOTT PRODUCE, PACA Docket No. 2-6784. Reparation Order ..... 1363 

G&H SALES INC. v. ACTION Co. INC. a/t/a GORDON FOODS and/or 
HILAND POTATO CHIP Co. OF DES MOINES. PACA Docket No 2-6722 
Order Of Dismissal .............................................................. ' ig( ,g 

GOLD COAST PACK.NG INC. v . H. SCHNBLL AND" Co." "and /or "LLOYD 
MEYERS Co., INC. PACA Docket No 2-6414. Order Granting Recon- 
sideration And Reopening Proceeding .................... 1369 

G ^ AT f D 'f RIBUTORS T^ PAC GROWERS AND SH 'INC! 

PACA Docket No. 2-6633. Dismissal ................................. 1286 

GULF LAKE PRODUCE Co. v. MAUTUCE D. HILL d/b/aDiAMOND Tl'pBura 

Go. a/t/a DIAMOND T. FRUIT SALES. PACA Docket No. 2-6714 

Order Of Continuance ................................................ 137g 

HARMON, JOHN K. d/b/a HARMON COMPANY PRODUCED" A LEVY" DIST 

Co. INC. PACA Docket No. 2-6648, Decision And Order ' 1268 

HARRV BUSHMAN INC., . AUSTIN A. CLAYPOOL, d/b/a AUSTIN CLAY" 

FOOL. PACA Docket No. 2-6665. Decision And Order 1279 

HiLBBRT INC. v. ROBERT R. COWGILL d/b/a VALLEY DISTRIBUTING" Ca| 

PAPA r n f \M EY o A r? S N IN " and/or ap - TREY'S SONS INC. 
PACA Docket No. 2-G510. Order On Reconsideration 1374 

^TA^TT PACKING co - INC - - LIEBMANS w****"^- 

TOES. PACA Docket No. 2-6658. Decision And Order 1353 

HOWELL, CLEMON and JOE, d/b/a HOWEUS FORMS ,, THOMAS 
SCOTT d/b/a S&H QUALITY PRODUCE. PACA Docket No. 2-6690 De- 
cision And Order ............................................. 

J ' S A n N ? A r Z rrT S NS ? a ft H ' H ' P ^^^'l^'p^D^t 
No. 2-6668. Decision And Order ................................ 129g 

J.A WOOD CO-VISTA, INC. v. MENDEZ BROTHERS'PRODUCE Co." PACA 
Docket No. 2-6598. Decision And Order ..... 1328 

J ' B NnT R ? B rT? a I CITY WIDE DISTRIBUTO INC. PACA "Docket 
No ^-638fi. Order on Reconsideration ......... 1382 

SHULMAN PRODUCE Si, I NC . . AMERICAN'PRODUCE'AND 
^. a . /t/a A AMERICAN PREPAK COMPANY. PACA Docket 
1. Decision And Order .......... 



.......... 13 , 

n n D ' STRIBU 'rPACA'Docket'No.'"2- 

. Order On Reconsideration ......... ,, 

KINGS CANYON FHOIT SALES INC. v. WEST ''''' 



. 
PACA Docket No. 2-6764. Reparation Order ....... 1297 

KNIGHTENS TOMATOS' INC. ft EMERSON H. ELLIOTT, d/b/a EMERSON"^ 
LIOTT PRODUCE. PACA Docket No. 2-6788. Reparation Order .. 1317 



LIST OF DECISION REPORTED 1125 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930 Cont. 
REPARATIONS DECISION Cont. PAGE 

L-N-L PACKING INC. v. GEORGE J. TURKE, d/b/a TROPIC KING GROVES, 
a/t/a SILVER PALM GROWERS. PACA Docket No. 2-6618. Decision 
And Order 1338 

L-SHANGS INC. v. GWIN, WHITE and PRINCE INC. and/or CASCOA GROW- 
ERS. PACA Docket No. 2-6549. Decision And Order 1322 

LULU PACKING CORPORATION v. WEST COAST PRODUCE SALES INC. 
PACA Docket No. 2-6765. Reparation Order 1299 

MANN PACKING Co., INC. STANLEY and JOE Russo. PACA Docket No. 
2-6577. Decision And Order 1307 

MARTOHI BROS. DISTRIBUTORS v. HOULEHAN INC. PACA Docket No. 2- 
6771. Order Of Dismissal 1380 

MERRILL FARMS v. TOM LANGE COMPANY, INC. PACA Docket No. 6492. 
Decision And Order 1253 

MILLS DISTRIBUTING Co. v. ANTHONY TAMMARO INC. PACA Docket No. 
2-6687. Order 1371 

Miss MUFFETT POODS INC. a/t/a UNITED PACIFIC PACKERS v, V.I.P. 
FOOD DISTRIBUTORS INC. Reparation Order 1364 

NASH-DE CAMP Co. v. FLOYD J, BOYER. PACA Docket No. 2-6667. Stay 
Order 1376 

NEW WEST FOODS v. FEDERATED FOODS INC. PACA Docket No. 2-6739. 
Order of Dismissal 1379 

NICOLAUS, DONALD F. d/b/a DON PRODUCE v. CITY WIDE DISTRIBUTORS 
INC. PACA Docket No. 2-6421. PACA Docket No. 2-6421. Order On 
Reconsideration 1384 

O.P. MURPHY PRODUCE Co., INC. d/b/a O.P. MURPHY & SONS, v. EMER- 
SON H. ELLIOTT d/b/a, EMERSON ELLIOTT PRODUCE, PACA Docket 
No. 2-6770, Decision And Order 1274 

PACIFIC TOMATO GROWERS u. CROWN PRODUCE DISTRIBUTORS. PACA 
Docket No. 2-6584. Decision And Order 1334 

PAPPAS AND Co., v. RALPH AND CONO COMMUNALE PRODUCE CORP. 
PACA Docket No. 2-6504. Re-Instatement Decision And Order 1371 

P-R FARMS SALES AND EXPORT INC. v, WEST COAST PRODUCE SALES INC. 
PACA Docket No. 2-6763. Decision And Order 1273 

REGENCY COMPANY v. GRAYSON E. LEWIS d/b/a TOMATO OF VIRGINIA. 
PACA Docket No. 2-6601. Decision And Order 1265 

R.F. DONOVAN FARMS INC., v, COROAN & SONS INC. PACA Docket No. 
2-6800, Order Requiring Payment Of Undisputed Amount 1347 

RICHARD C. CRANE v. HEIDEMA FRUIT AND PRODUCE Co. PACA Docket 
No. 2-6738. Order Vacating Order, Reopening After Default Rein- 
stating Default Order 1373 

ROBERT L. MEYER d/b/a MEYER TOMATOES, v. OTAY PACKING Co. PACA 
Docket No. 2-6833. Order Requiring Payment Of Undisputed 
Amount 1-365 

SARATOGA DISTRIBUTORS v. BHUCE BROTHERS INC. PACA Docket No, 2- 
6499. Decision And Order 1275 

SEABOARD PRODUCE DISTRIBUTORS v. CITY WIDE DISTRIBUTORS INC. 
PACA Docket No. 2-6471. Order On Reconsideration 1387 



1126 LIST OP DECISION REPORTED 



PERISHABLE AGRICULTURAL COMMODITIES ACT, I 930 -Cont 
REPARATIONS DECISION-Cont. 



Six L's PACKING COMPANY, I N c"7 WpN^iTT"^ ................................... 1318 

. PAGA 



2-6542. Decision And Or d er "^ PACA D *et No. 



1869 
1381 



REPARATIONS DEFAULT DECISIONS; 

A _ BlwriJfcl , nA 

', INC. 

1414 



AMIQO PRODUCE Co. INC. ^MARJA E R 1409 

& PRODUCE. PACA Docket No RD-85 ^i** ^ /b/a EsTRADAS EGGS 
ANDRUS & ROBERTS PRODUCP Pn' T,, "XT ^ 

d/b/a STANLEY & Su^o P Arl n i "- Md STANLEV Russo 
ANTHONY PODESTA INC T^OPHA P D * 241 

JMB PACKING Co. PACA Docket No RD^Tppn ANY lNC ' fl/t/a 
BIANCHI & SONS PACKING Co. McNwX Twf 1408,1425 

No,RD-8E-287 MCNEILS TOMATOES. PACA Docket 

CHARLES T. BLAINE d/b/a B & M P 1417 

PACA Docket No. RD-85-292 ' "' AmV>S PR D UCE Co. 

^^^^^^^^^'^ UW 

"Si:. i ------s:^'^ - 



.. 1410 



LIST OF DECISION REPORTED 1127 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 
REPARATIONS DEFAULT DECISIONS-Cont. PAGE 

BRUCE CHURCH INC. v. CORGAN & SON INC, PACA Docket No. RD-85- 

235 1406 

CALIFORNIA SWEET POTATO GROWERS v. BENCHMARK BROKERAGE INC. 

PACA Docket No. RD-85-243 1408 

CANTRELL RUFUS CAREY u. TROY H. CRIBB & SONS INC. PACA Docket 

No. RD-86-279 1415 

CASILLAS BROS. INC. v. J.P. DANIEL PRODUCE INC. PACA Docket No. 

RD-85-301 1420 

CASTO, ROBERT W. d/b/a PRIMA CITRUS & FRUIT EXCHANGE v. JOE N. 

Russo and STANLEY Russo d/b/a STANLEY & JOE Russo. PACA 

Docket No. RD-85-270 1413 

CHAMBERLIN & BARCLAY, INC. v. TAYLOR-BYEHS INC. PACA Docket No. 

RD-85-262 1412 

CHUNK'S PRODUCE INC. v. TEXAS PRODUCE. PACA Docket No. RD-85- 

250 1409 

DEMARCO, RALPH d/b/a MARCO TOMATO Co. u. CARON FRUIT Co. PACA 

Docket No. RD-85-249 1409 

DEW-GRO INC. a/t/a CENTRAL WEST PRODUCE v. BEST PRODUCE Co., 

INC. a/t/a/ NEW AIRLINES PRODUCE Co. PACA Docket No. RD-85- 

296 1419 

DEW GRO INC. a/t/a CENTRAL WEST PRODUCE v. MINGS IMPORT Co. 

PACA Docket No. RD-85-152. Order Re-Opening After Default 1420 

DIXON ToM-A-ToE COMPANIES INC. v. R.H. PRODUCE INC, and/or FOR 

HORIZON TRADING COMPANY. PACA Docket No. RD-85-216. Stay 

Order 1423 

DIXON TOM-A-TOE COMPANIES INC. v. R.H. PRODUCE INC. and/or FOR 

HORIZON TRADING Co. INC. PACA Docket No. RD-85-216. Dismissal. 1428 
EVERKRISP VEGETABLES INC. v. CORGAN & SON INC. PACA Docket No. 

RD-85-288 1417 

FARM PAK PRODUCTS INC. v. ANDY'S PRODUCE Co. PACA Docket No. 

RD-86-294 1419 

FAULKNER & BALLESTEROS PRODUCE Co. INC. v. CORGAN & SON INC. 

PACA Docket No. RD-85-234 1406 

FOUR STAR PRODUCTS v. RONNIE ADAMS d/b/a C&R PRODUCE Co. 

PACA Docket No. RD-85-242 1408 

FOUR STAR TOMATO Co. INC. v. TOMATOS INC. PACA Docket No. RD- 

86-149. Order Reopening After Default 1424 

FRANCIS PRODUCE Co., INC. v. TOMATO OP VIRGINIA. PACA Docket No. 

RD-85-211, Stay Order 1427 

FRESH WESTERN MARKETING INC, v, PACA Docket No. RD-85-198. 

Stay Order 1422 

GARLIC DISTRIBUTORS INC, u. BEST PRODUCE Co. INC. a/t/a NEW AIR- 
LINE PRODUCE Co. PACA Docket No. RD-85-228 1405 

GARREN-TEED PRO Co, INC. v. BENCHMARK BROKERAGE INC. PACA 

Docket No. RD-85-269. Order Correcting Prior Order 1428 

GARREN-TEED PRO Co. INC. v, BENCHMARK BROKERAGE INC. PACA 
Docket No. RD-85-269 1413 



LISP OK DECISION REPORTED 



289 " """ w J E Russo. PACA Docket No. RD-85- 

'LD BELL INC. . CARON ^'CO"INC"PACAD' " k U18 

AGENCY. PACA DoVkerNo.'^^ 1180 " d/b/a THI ' STA ' rE S*" 



OROWEM MARKETING SEBVICE INP ,i" w 

Docket No. RD-85-2G8 WALM1ON PnODU Co. PACA 

H&H PRODUCE SALES lm"u""E*Nm"r""i ............................................ 

PKODucECo.P A c ADocketNo n R N D K J G 2 A NDER SON d/b/a ANDY'S 

" 



M1S 



1416 



I NC . , . - ................... 1420 

Co. PACA Docket No HnT "" A " DY ' S 



I416 



PACA Docket No. RD '" & C " "' P " ANas E - 



c 



1415 



LIST OF DECISION REPORTED 1129 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 
REPARATIONS DEFAULT DECISIONS Cont. PAGE 

MIKAMI BROS, a/t/a MIKAMI BROTHERS POTATOES v. SOUTHWEST 

PRODUCE INC. PACA Docket No. RD-85-218 1403 

MISSION PRODUCE INC. v. CORGAN AND SONS INC. PACA Docket No. 

RD-85-195. Stay Order 1423 

MISSION PRODUCE INC. v. CORGAN AND SONS INC, PACA Docket No. 

RD-85-195. Order Vacating Stay Order. Re-Instating Default Order. 1426 
MONTECUCCO FARMS v. LANDMARK TRADING COMPANY. PACA Docket 

No. RD-85-260 

NAUMES INC. v. FRANK MARCHESOTTO COMPANY INC. PACA Docket No. 

RD-85-298 

NEBRASKA POTATO SHIPPERS INC. v. BEN CONTRERAS PRODUCE, PACA 

Docket No. RD-85-218 1416 

NOGALES FRUIT & TOMATO DIST. INC. v. CAREY DIST. Co. INC. PACA 

Docket No. RD-85-300 1419 

NORTHCROSS, KENT W, d/b/a/ NORTHCROSS DISTRIBUTION v. GEORGE 
VILLALABOS d.b.a. TEKSUN BRAND INTERNATIONAL, PACA Docket 

No. RD-85-189 1422 

O & E GROWERS, INC. v. GREENPOINT PRODUCE Co. INC. PACA Docket 

No. RD-85-253 1410 

OKRAY PRODUCE COMPANY v. THOMAS J. BOWMAN INC. PACA Docket 

No. RD-85-237 1407 

PBU ENTERPRISES a/t/a QUALITY DISTRIBUTING OF CALIFORNIA v. 
ANGEL W. DBMEROUTIS d/b/a PROXORA DISTRIBUTING Co. PACA 

Docket No. RD-85-254 1410 

PACIFIC FARM COMPANY v. RICHARD V. FREITAS d/d/a TEXAS PRODUCE. 

PACA Docket No. RD-86-251 1410 

PACIFIC GAMBLE ROBINSON Co. a/t/a PACIFIC FRUIT & PRODUCE Co. u. 

PRODUCE PRODUCTS INC. PACA Docket No. RD-85-267 1413 

PACIFIC GAMBLE ROBINSON Co. a/t/a PACIFIC FRUIT AND PRODUCE Co. 

u. STANLEY & JOE Russo. PACA Docket No. RD-85-277 1416 

PARIS FOODS CORPORATION v. SPECIALITY FOODS CORPORATION. PACA 

Docket No. RD-85-280 1415 

PEMBERTON PRODUCE INC. u. ERNEST G. ANDERSON d/b/a ANDY'S 

PRODUCE Co. PACA Docket No. RD-85-293 1418 

PEMBERTON PRODUCE INC. v. DANNY G. SCURRY d/b/a RALEIGH BRO- 
KERAGE & DISTRIBUTING Co. PACA Docket No. RD-85-283 1416 

PHILADELPHIA PRODUCE CREDIT & COLLECTION BUREAU, v. JOSEPH J. 
ABDALLA d/b/a CRIS-MAH FOOD DISTRIBUTORS. PACA Docket No. 

RD-85-238 14 7 

PLAINFIELD FRUIT & PRODUCE Co. INC. v. JOSEPH ABDALLA d/b/a CRIS- 

MAR PRODUCE. PACA Docket No. RD-85-236 1406 

PRODUCE SPECIALIST OF ARIZONA INC. v. ROBERT J. STELLY, SR. d/b/a 

ROBERT STELLY PRODUCE. PACA Docket No. RD-85-261 1412 

QUAKER CITY PRODUCE COMPANY v. JOSEPH J. ABDALLA d/b/a CRIS- 

MAR FOOD DISTRIBUTORS. PACA Docket No. RD-85-239 1407 

R.J. DISTRIBUTING Co. INC. v. JALI PRODUCE Co. INC. PACA Docket No. 
RD-85-229. Stay Order 1425 



112-1 LIST OF DKCISION HKPORTKD 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 11)3(1 (Nmt. 
REPARATIONS DECISION Cunt. I A(JK 

FRUIT DISTRIBUTING CORPORATION <;. OAKY I), HARNKY, d/b/n GAIIY I.). 

HARNEY COMPANY. PACA Docket No. 2-6r>02. Decision And Order.,., mi 
GAHIN COMPANY, THE, v. NAKH-DK-CAMP COMPANY. PACA Doukoi No. 

2-6308. Decision Ami Order ......................................................................... \zn',\ 

GARIN Co., TUB, y. ED GIVBN INC. PACA Docket No. 2-(>(i2l. DlHiniMHiil. IH5{> 
GEORGIA VEGUTAHLE Co. INC. v. EMKHHON IT. KLLIOTT d/h/n KMNKHON 

ELLIOTT PRODUCE. PACA Docket No. 2-07H4. Reparation Order .......... IDliil 

G&H SALES INC. y. ACTION Co. INC. a/t/n GORDON KOOD.H and/or 

HILAND POTATO CHIP Co. ov DKS MOINRB. PACA Docket No, i!--rt7B2. 

Order Of Dismissal ........................................................................... _ ............ i;i'/H 

GOLD COAST PACKING INC. v. II. SCIINKI.L AND Co., and/or LLOYD 
MEYBHS Co., INC. PACA Docket No 2-B4M. Order (Jrantinu Rvam- 
sideratioti And Reopening Proceeding ....................................................... IMJ) 

GOLDEN STATE DISTRIBUTORS v. TOP PAD GBOWRRH AND SIIII>I>KHN INC. 
PACA Docket No. 2-(iG83. Dlamissnl .......................................................... ign(| 

GULF LAKE PRODUCE Co. v. MAURICE D. HILI, d/b/n DIAMOND T. KHUIT 
Co. a/t/a DIAMOND T. FRUIT SALES, PACA Docket No. 2-7K 
Order Of Continuance .................................................... i;^ 

HARMON, JOHN K. d/b/a HARMON COMPANY PRODUCE y. A LEW DIBT. 
Co. INC. PACA Docket No. U-GfidS. Decision And Order ........................ ia((K 

HARRY BUSHMAN INC., v. AUSTIN A. CLAYPOOL, d/b/a AUSTIN (,'I.AY- 
POOL. PACA Docket No. 2-6(ifi5. Decision And Order .............................. [^/!l 

HILDEHT INC. v. ROBERT R. COWQILL d/b/a VALIJSY DiSTitinimNii Co., 
and/or W.E. RILEY AND SON INC., and/or B.F. TKAPIMOY'S SONW INC' 
PACA Docket No. 2-8510. Order On Reconsideration ........................... |;!'M 

HOMESTEAD TOMATO PACKING Co. INC. y. LIEHMANH WIIOI.KNAI.K TOMA- 
TOES. PACA Docket No. 2-6668. Decision And Order ........................... |;jfi;i 

HOWELL, CLEMON and JOE, d/b/a HOWEUJJ FORMH y. TIIOMAH 
SCOTT, d/b/a S&H QUALITY PRODUCE. PACA Docket No. 2-Kfi\M De- 
cision And Order .................... ,.,,. 

' 



M o - U HJ ' L PUOIHK:K SAIJ 'NC. I'ACA DoiihiK 

No. 2-6668. Decision And Order ............................................ ],,,,., 

A^ WOOD CO-VISTA, INC. y. MBNDEZ UROTiM^Rsl'Ronu^ri'iaT'AciA 
Docket No. 2-6598. Decision And Order , ,,., 

n n ClTY W|DE D 'ni. ffl INC." PACA 'Dm-kot 

. Order on Reconsideration .,.., 

JERKY SHULMAN PRODUCE SHIPPER INC. A""' ' " 



UE DisTUinuTOHfl. PACA Dot'ltul No. 

- - --x. vl H "Qllni*Hi*if,,n t 1 Ittf I 

KINGS CANYON FRUIT SALES INC, . WEST Co'^u^r^r,"'": 

PACA Docket No. 2-6764. Reparation Order 
KN.HTENS TOMAT^ INC^, EMERSON H. EL,,^, a/D/n , M , IIH(1N 

*. PACA Docket No. 2-6788. Reparation Order m? 

' h "' "" '" Hill 



LIST OF DECISION REPORTED 1125 



PERISHABLE AGRICULTURAL COMMODITIES ACT, 1030-Cont. 
REPARATIONS DECISION-Cont. 



PAGE 



L-N-L PACKING INC. y. GEORGE J. TURKE, d/b/a TROPIC KING GUOVES, 
a/t/a SILVER PALM GROWERS. PACA Docket No. 2-6618. Decision 
And Order ....................................................................................................... 

L-bHANQs INC. v. GWIN, WHITE and PRINCE INC. and/or CASCOA Grtow- 

EHS. PACA Docket No. 2-6549. Decision And Order ............................... 1322 

LULU PACKING CORPORATION v. WEST COAST PRODUCE SALES INC 

PACA Docket No. 2-6765. Reparation Order ....................................... 12<)9 

MANN PACKING Co., INC. STANLEY and JOE RUSBO. PACA Docket No' 
2-6577. Decision And Order ........................................... . .......... 

MARTORI BROS. DISTRIBUTORS v. HOULEHAN INC. PACA Docket 

6771. Order Of Dismissal .................... r , ttn 

- , ,., ......................................................... .... loot) 

MERRILL FARMS v. TOM LANGE COMPANY, INC. PACA Docket No 0492 

Decision And Order ......................................................... 12fi ^ 

Ml ^,?i ST A tIIiUTING C ' v ' ANTHONY TAMMAHO INC."PACA Docket No! 

2-6687, Order ........................................................ .,, 

Miss MUFFETT POODS INC. a/t/a UNITED "ipAc" "'" 

FOOD DISTRIBUTORS INC. Reparation Order ............... 

NASH-DE CAMP Co. v. FLOYD J. BOYER. PACA Docket' 

Order ........................................ 

NEW WEST FOODS v. PBDEHATED Foons'TNaPAC 
Order of Dismissal .................. 

PA^T 1 ; *; M /b o a N *^'*cv a; ' 

C. PACA Docket No. 2-6421. PACA Docket No. 2-6421. Order On 
Reconsideration ............. 

No 2 670 n / f' ?;f" SON ELLIOTT Pll DUCE - PACA Dhot 

No. J-b770. Decision And Order ..... 127il 

Doc N nr V ' ? WN P"c 'D'n^'' PACA 

Docket No. 2-6584. Decision And Order ......... 



ppAn LEWIS 

PACA Docket No. 2-6001. Decision And Order .......... laflfi 

2 G8000^ FA " MS , INC " " Co '' & SONS INC. PACA^cWNa 
R,rl!!n r P ' q t'" g P " ymBnt f u <llBputed Amount .................. 

No 2 67 S 8"n N H " v E ' D r A 5?"" AN " P m C ' PACA Docket 

e ri Reopenins 



, o a PACA 

Amount. !: Requiring Pa ymont Of Undisputed 






U26 LIST OF DECISION REPORTED 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 

REPARATIONS DECISION-Cont. .., 

I'AHI'J 

SIGMA PRODUCE Co. v. CARUSO PRODUCE INC. PACA Docket No. 2-045(5. 

Decision And Order ............................................. j.jiu 

Six L's PACKING COMPANY, INC. v. WENDELL L. BAimE^'d/b/a'lJAR" 

NETT BROKERAGE. PACA Docket No, 2-6628. Decision And Order ....... K11M 

S&M PRODUCE INC. v. LA PBEFEHEDA INC. PACA Docket No, 2-0491 . 

Order On Reconsideration And Dismissal Of Petition For Hoopon- 

m & ................................................................................................................ i; {7 7 

S. &TAMOULE8 INC. a/t/a STAMOULES PRODUCE V. A. J. PllODUCK CoRI>. 

PACA Docket No. 2-6630. Dismissal ............... \ m 

SYRACUSE AND JENKINS PRODUCE Co. INC. v. GKO'UGE J'.'TUBKB d/b/a 

oT!o ~ NG GROVES a/Ua SlLVER PALM GROVES - PA CA Docket No. 
2-6542. Decision And Order ...... 1; , ( ,. 

'' 



pApno- NNATODUc 

PACA Docket No. 2-6663. Decision And Order., i*><) 

^w^frTio^T ^ "' ClTY WlDE D ' S 'BUTORS INC. PACADochot 

No. 2-6419. Order On Reconsideration ........ 

VAN SOLKEMA INC. u. EMERSON H. ELLIOTT, d/b/a EME 

PRODUCE. PACA Docket No, 2-6785. Reparation Order 

' CONTINENTAL 



pArAnv o - 

PACA Docket No. 2-6104, Dismissal,. 



r . m 

APAn STOnAGE - v - Ao-wir GROWER; IN';;: ' 

PACA Docket No. Decision And Order.. ,.,, 

" ' 



n M a u C ' TY 

Docket No. 2-6412. Order On Reconsideration 



REPARATIONS DEFAULT DECISIONS: 



MM 

MO!) 












... 1410 



LIST OF DECISION REPORTED 1127 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 
REPARATIONS DEFAULT DECISIONS- Cont. PAGE 

BRUCE CHURCH INC. v. CORGAN & SON INC. PACA Docket No. RD-85- 
235 1406 

CALIFORNIA SWEET POTATO GROWERS v. BENCHMAKK BROKERAGE INC. 

PACA Docket No. RD-85-243 H08 

CANTRELL RUPUS CAREY v. TROY H. CHIBB & SONS INC. PACA Docket 

No. RD-85-279 1415 

CASILLAS BROS. INC. v. J.P. DANIEL PRODUCE INC, PACA Docket No, 

RD-85-301 1420 

CASTO, ROBERT W. d/b/a PRIMA CITRUS & FRUIT EXCHANGE u. JOE N. 

Russo and STANLEY Russo d/b/a STANLEY & JOE Russo. PACA 

Docket No. RD-85-270 14 13 

CHAMBEHLIN & BARCLAY, INC. v. TAYLOII-BYEHS INC. PACA Docket No 

RD-85-262 

CHUNK'S PRODUCE INC. v. TEXAS PRODUCE. PACA Docket No. RD-85- 



250. 



1'109 



DEMARCO, RALPH d/b/a MARCO TOMATO Co. v. CARON FHUIT Co PACA 
Docket No. RD-85-249 .................................................................................. 

DEW-GRO INC. a/t/a CENTRAL WEST PRODUCE v. BEST PRODUCE Co., 
INC, a/t/a/ NEW AIRLINES PRODUCE Co, PACA Docket No. RD-85- 

n 29 ^ ................................................................................................................... 1419 

DEW GRO INC, a/t/a CENTRAL WEST PRODUCE v. MINGS IMPORT Co 

PACA Docket No. RD-85-152. Order Re-Opening After Default ......... 1420 

DIXON TOM-A-TOE COMPANIES INC. v. H.H. PRODUCE INC. and/or Foil 
HORIZON TRADING COMPANY. PACA Docket No. RD-85-216. Stny 
Order .......................................................... , . 

DIXON TOM-A-TOE COMPANIES INC. v. R.H. PRODUCE INC. and/or FOR 
HORIZON TRADING Co. INC. PACA Docket No. RD-85-216. Dismissal, 1428 

EVERKRISP VEGETABLES INC. v. CORGAN & SON INC. PACA Docket No 
RD-85-288 .................................................................................................... M17 

FARM PAR PRODUCTS INC. v. ANDY'S PRODUCE Co. PACA Docket No 
RD-85-294 ' 



FAULKNER & BALLESTEROS PRODUCE Co. INC. v. COROAN & SON INC 

PACA Docket No. RD-85-284 .................................................................... _' 1406 

FOUR STAR PRODUCTS u. RONNIE ADAMS d/b/a C&R PHODUCF C"o 

PACA Docket No. RD-85-242 ......... . ........................................................ ' 140 g 

FOUR STAR TOMATO Co. INC. u. TOMATOS INC. PACA Docliet No, RD~ 

86-149. Order Reopening After Default .......................................... 1424 

FRANCIS PRODUCE Co,, INC. v. TOMATO OF VIRGINIA. PACA 'Socket No' 

RD-86-211. Stay Order ................................................................................ \ 

FRESH WESTERN MARKETING INC. v. PACA Docket No. RD-85-198 

Stay Order ..................................................................................................... ' 

GARLIC DISTRIBUTORS INC. v. BEST PRODUCE Co. INC. a/t/a NEW Am- 
LINE PRODUCE Co. PAGA Docket No. RD-85-228 .................................... 1405 

GAHREN-TEED PRO Co, INC, v. BENCHMARK BROKERAGE INC PACA 
Docket No. RD-8G-2G9. Order Correcting Prior Order ............ 1428 

GARREN-TEED PRO Co. INC. u. BENCHMARK BROKERAGE INC. PACA 
Docket No. RD-85-269 



lm LIST OF DECISION RKI'OKTHI) 

PERISHABLE AGRICULTURAL COMMOIHTIKH ACT. l!t:iUC,, n |. 
REPARATIONS DKKAULT DKCIHIONS-Cnnl. 

GINO PINTO INC, y. STANI.KY & JOK Kirwo. j'ACA DnHd-l Nn, HI) Hi, 

GOLD BEI.I, INC. y. CAKON KKUIT Co. iNtri'ArA'niu-lu-t' N.i HI) Hfi' '''in' H,r 

GOLDBN EAOLE PROHUCK c. WILLIAM H, CAHHON .I/I,/,. 'rin.'.SrATK MAIM ' 

AGENCY. PACA Docket No, HD-Hf.-^? 

GRANADA MAHKKTINCI INC, /t/ lu(:iiAn"A'!"('ii!AHN ' l "' t 



. ^ 

PRODUCK COMPANY. PACA Dockot No. K|) .Hf.-.:'(ir, , . 

sssN:s:^;;r WAi ....... *^'* 

1 INC! ' " ;: ' " ' Mai 






CAI10N Fllun , (;i , , N ,ri,;;;: k ,;rN;:i,,," UIH 



NGLE KING INC. n/^ n .!,,... rr'.'.".' "' I-Ufi 

i JJiHutiiitmutH |i, |j ^ [, 

Mtin 



PACA Docket No. RD-s,^* 11 " 1 * "" * ..> K. WH,,,,' 



HIW 

AIIB & 

Mlfl 



LIST OF DECISION REPORTED H29 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 
REPARATIONS DEFAULT DECISIONS-Cont. pAGE 

MIKAMI BROS, a/t/a MIKAMI BROTHERS POTATOES v. SOUTHWEST 

PRODUCE INC. PACA Docket No. RD-85-218 14Q3 

MISSION PRODUCE INC. v. CORGAN AND SONS INC. PACA Docket No" 

RD-85-195. Stay Order \ 142g 

MISSION PRODUCE INC. v. CORGAN AND SONS INC. PACA Docket No! 

RD-85-195. Order Vacating Stay Order. Re-Instating Default Order. 1426 
MONTECUCCO FARMS v. LANDMARK TRADING COMPANY. PACA Docket 

No. RD-85-260 un 

NAUMES INC. v, FRANK MARCHESOTTO COMPANY INC. PACA Docket No 

W RD ~ 85 - 298 ! 1419 

NEBRASKA POTATO SHIPPERS INC. v, BEN CONTRERAS PRODUCE PACA 

Docket No. RD-85-218 1416 

NOGALES FRUIT & TOMATO DIST. INC. v, CARBY DIST Co INC PACA 

Docket No. RD-85-300 1419 

NORTHCHOSS, KENT W. d/b/a/ NORTHCROSS DISTRIBUTION" 'ii." GEORGE 

VILLALABOS d.b.a. TEKSUN BRAND INTERNATIONAL, PACA Docket 

No. RD-85-189 1422 

& E GROWERS, INC. v. GREENPOINT PRODUCE Co. INC. PACA Docket 
No. RD-85-263 141Q 

OKHAY PRODUCE COMPANY v. THOMAS J. BOWMAN INC, PACA Docket 

No. RD-85-237 14Q7 

PBU ENTERPRISES a/t/a QUALITY DISTRIBUTING" "Qv"cAummti'r'^ 

ANGEL W. DEMEROUTIS d/b/a PROXORA DISTRIBUTING Co. PACA 

Docket No. RD-86-254 1410 

PACIFIC FARM COMPANY v. RICHARD V. FHEITAS d/d/a TEXAS PRODUCE 

PACA Docket No. RD-86-261 1410 

PACIFIC GAMBLE ROBINSON Co. a/t/a PACIFIC FRUIT & PRODUCE Co" u 

PRODUCE PRODUCTS INC. PACA Docket No. RD-85-267 1413 

PACIFIC GAMBLE ROBINSON Co. a/t/a PACIFIC FRUIT AND PRODUCE Co! 

v. STANLEY & JOE Russo. PACA Docket No. RD-85-277 1415 

PARIS FOODS CORPORATION u. SPECIALITY FOODS CORPORATION PACA 

Docket No. RD-85-280 1415 

PEMBERTON PRODUCE INC. v. ERNEST G. ANDERSON d/b/a ANDY'S 

PRODUCE Co. PACA Docket No, RD-85-293 nig 

PEMBERTON PRODUCE INC. v. DANNY G. SCURRY d/b/a HALMD'H BR 

KERAGE & DISTRIBUTING Co. PACA Docket No. RD-85-283 1416 

PHILADELPHIA PRODUCE CREDIT & COLLECTION BUREAU, v, JOSEPH j! 

ABDALLA d/b/a CRIS-MAR FOOD DISTRIBUTORS. PACA Docket No 

RD-85-238 ' 140? 

PLAINFIELD FRUIT & PRODUCE Co. INC. v. JOSEPH ABDALLA d/b/a c'iiis- 

MAR PRODUCE. PACA Docket No. RD-85-236 1406 

PRODUCE SPECIALIST OF ARIZONA INC. v. ROBERT J. STELLY, SR, d/b/a 

ROBERT STELLY PRODUCE. PACA Docket No. RD-86-261 1412 

QUAKER CITY PRODUCE COMPANY v. JOSEPH J. ABDALLA d/b/a CRIS- 

MAR FOOD DISTRIBUTORS. PACA Docket No. RD-85-239 1407 

R,J. DISTRIBUTING Co. INC. v. JALI PRODUCE Co. INC. PACA Docket No 

RD-86-229. Stay Order 1425 



LIST OF DECISION REPORTED 



AGRI AL COMMOWTIES 

S DEFAULT DECISIONS-Com. 

R ~K"I!I^; JAU PnoDu E c - *- . 

REYNOLDS PACKING COMPANY B/i7*"ia* D"^' ................................................. 1406 

so COMPAQ I*c. PAcI " " 



- 14M 



SAUNAS MARKET IN Q COOPERATIVE DAMMV"P"Q ....................................... 1418 

BHOKERAGE & Dnn-WB ' MY d/b/a RALEIGH 



M 
SANTA CLA RA PSODUCE c Rov n 00 S' RD - 85 - 278 ........... "14 

Docket No. RD-85-275 RKER PRODU CE INC. PACA 



1406 



. PACA ocRD8 
STANDARD FKU.T & VEOCTABLE On 



Docket No. RD 85-4 E "MA RK BOK ER A OE I NC . PA c A 






No. RD-86-259 ALUY FA MS ""=. PACA Docket 



1408 



140a 

lm 

1403 



LIST OF DECISION REPORTED 1131 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 
REPARATIONS DEFAULT DECISIONS-Cont. PAQE 

WOERNER PRODUCE COMPANY INC. v . GIOVINAZZI PRODUCE Co INC 

PACA Docket No. RD-85-299 ' 1420 

WORLEY AND McCuLLOUGH INC. U. FERNANDO's INC. PACA Docket No 

RD-85-224 _' 14Q4 

ZELLWIN FARMS COMPANY o. JOSEPH FELDMAN INC. PACA Docket No 
RD-85-256 1411 

PLANT QUARANTINE ACT 

AMERICAN AIRLINES. PQ Docket No, 79. Consent Decision 1435 

CONTINENTAL AIRLINES and WEST COAST PRODUCE INC. PQ Docket No. 
88. Order Granting Motion To Dismiss To West Central Produce 



Inc.. 



1448 



ERCANBRACK, JACK M., PQ Docket No. 62. Decision and Order 1443 

ESPINAR, RAUL. PQ Docket No, 55. Dismissal 1445 

ESTRADA, MAGDELENA. PQ Docket No. 25. Decision And Order 1448 

FIELD, GARY and CONTINENTAL AIRLINES. PQ Docket No. 78. Consent 

Decision 1441 

GRAEBEL VAN LINES INC. PQ Docket No. 61. Consent Decision 1434 

KLM ROYAL DUTCH AIRLINES. PQ Docket No. 76. Consent Decision 1440 

LINDSAY, ROBERT MRS. PQ Docket No. 68. Consent Decision 1432 

RAMIREZ, JUAN AQUILAR. PQ Docket No. 157. Consent Decision 1431 

RAMOS, FRANCISCO. PQ Docket No. 37. Ruling On Reconsideration 1447 

RAMOS, FRANCISCO. PQ Docket No. 37. Ruling on Certified questions 1442 

SAN JUAN PRODUCE. PQ Docket No. 39. Consent Decision 1437 

STENA LINE A.B., STENABULK/ DAVIDSON. PQ Docket No. 91. Consent 

Decision 1445 

WAH KWONG SHIPPING AGENCY COMPANY, LTD. PQ Docket No. 69. 
Consent Decision 



AGRICULTURAL MARKETING AGREEMENT ACT, 1JKI7 1 IM 

Volume 44, Number H 

In re: SEQUOIA ORANGE Co., INC., AMA Docket No, F&V 907-1! 
Decided May 6, 1985, 



Dismissal. 



Jam?.* Afoody, for complainant. 
Gregory Cooper, for respondent. 
Victor W. Palmer, Administrative Law Judge. 



Decision by Donald A, Campbell, Judicial Officer. 
DECISION AND ORDER 

XKMSwssHr? *=* " 

.. .DM. . ,, &lKu *M d ?' i" 10 "',?"' Ap '" 

that it was not timely filed. Accordin 1 *' 1" S rounc) 

treated as an appeal. As such it ' # P . 'oner's document is 
ALJ's order dismissing the pet'fc' ^ . S / nissed a . s frivolous. TJie 

?i ft nil tod it- *u K i i . . iJiuii WICriOUt Dl*fiinHip<* io i 

.taopted as the final decision in this casp ^ Iy juaice is 



motion to dis . 
* 



eto tcae f n Pe- 

Jst.ngui.shed from an earlier apparent * this petition as 
( '. Inc.. does not challe attl ^ d ' ng t petition ^ Sequoia Oranl 
er rogulating the hlndfing of Sf f ^ ^^ aS^ 



SEQUOIA ORANGE CO., INC. 1133 

Volume 44, Number 3 

that a public action taken by the Secretary to amend a marketing 
order in itself nullifies the existing order. 

As respondent urges in its memorandum of law, the statutory 
scheme contemplates that the Secretary must take definitive steps 
to terminate an existing marketing order and his intention to 
assert such authority should not be lightly inferred. It is provided 
in 7 U.S.C, 608c(16)(B), for example, that he is to terminate an 
order when he finds a majority of the producers whose production 
is under its regulation favor termination but, having so found, he 
may only terminate the order at the end of the current marketing 
period. Producers who accept the regulation of the handling of 
their crops are entitled to act in reliance upon changes in their 
marketing practices made by them in consonance with the order's 
regulatory provisions. 

To allow the present petition to go forward to a hearing on the 
assumption that an order is susceptible of termination on the basis 
of incidental statements in press releases respecting an order's 
future amendment would shake industry confidence in the whole 
marketing order system. Moreover, it conflicts with the statutory 
scheme of employing marketing orders to establish and maintain 
orderly marketing conditions for commodities (7 U.S.C. 602). The 
Secretary of Agriculture is specifically constrained by stated con- 
gressional policy (7 U.S.C. 602(5)), "to continue for the remainder 
of any marketing season or marketing year, such regulation pursu- 
ant to any order as will tend to avoid a disruption of the orderly 
marketing of any commodity and be in the public interest, if the 
regulation of such commodity under such order has been initiated 
during such marketing season or marketing year on the basis of its 
need to effectuate the policy of this chapter." 

At no time has the Secretary stated that he was terminating the 
marketing order for navel oranges. Nor would a mere statement by 
the Secretary suffice. He would have to satisfy the statutory re- 
strictions on his termination powers. 

Accordingly, petitioner's request that termination of the market- 
ing order be ordered by me as a mere ministerial act in further- 
ance of an expression of the Secretary's intention, is not legally 
cognizable and the petition is denied without prejudice. 

ORDER 

Petitioner's petition is dismissed without prejudice. 



ANIMAL QUARANTINE AND KKI,ATKI) LAWS ,,, 

Volume 'M, NiiinlxM- II 

In re: P. J. SMITH. AQ Docket No. 155. Decided M.v 1 , 1 !Wfi t 
Civil Penalty. 

Mark Dopp, for complainant. 
Respondent, pro se. 

Decision by William J. Weber, Administrative Law f 

CONSENT DECISION 



th ", 

filed by the Admteisof tP A ^ ""I 1 ""' '' y " <'"""'<""" 
tion Service alleging that rf I'," 1 " 1 1>lllnl If "" l[|1 
Uons VlUw ''" 



tion Service allegng that rf ," 1 " llnl If "" l[|1 '""I 1 "'" 

Uons W -^5,r^ V ST l rf Uw ^ ''" '" 
have agreed that this proceeding 8 hlH. 7 ' ' ""' l " lllil ' H 
the Consent Decision set forth below ,n, " tormln " 1 '' '* "".>' "f 
ing stipulations: W " ml hav " '<'(! to II,,. f,,||,,w. 



" d th " 

the ^^ Secretary of the United Sta e Z , R|>Bclncu "l' ''"' l" 
junsd ction in this matter, nett. f a f" Umt ( ' Affrk-Hjlun. |, IIH 
fg allegations in the comnI H in7 , """ nor doni ' 1 H' roinni,,, 
forth below, and waives ' "' adm ' tS to tho WndlnK*, of Wl ", ^ 
W Any furt her procedure; 






1 P J """M OF FACT 

"KftSsSC " ' '""*' *" 

interstate fr om Lea ^ ">***, the 

' Oklahoma ' 



ROBERT CAVICCHIO 1135 

Volume 44, Number 3 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following order in 
disposition of this proceeding, such order and decision will be 
issued. 

ORDER 

The respondent is assessed a civil penalty of two hundred dollars 
($200). The respondent shall send, payable to the "Treasury of the 
United States" a certified check or money order, to Mark D. Dopp, 
Office of the General Counsel, Room 2422, South Building, United 
States Department of Agriculture, Washington, D.C. 20250, within 
thirty (30) days from the effective date of this order. 

This order shall become effective on the day this order is served 
upon the respondent. 



In re: ROBERT CAVICCHIO, AQ Docket No. 115. Decided May 3, 1985. 
Civil Penalty. 

Kris Ikejiri, for complainant. 

Richard Plouffe, Boston, Mass., for respondent. 

Decision by Dorothea A. Baker, Administrative Law Judge, 

CONSENT DECISION 

This proceeding was instituted under the Swine Health Protec- 
tion Act, as amended (Act) (7 U.S.C. 3801 et seq,), by a complaint 
filed by the Administrator of the Animal and Plant Health Inspec- 
tion Service alleging that Robert Cavicchio, respondent, violated 
the Act and regulations promulgated thereunder (9 CFR 166,1 et 
seq.). The parties have agreed that this proceeding should be termi- 
nated by entry of the Consent Decision set forth below and have 
agreed to the following stipulations: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, the respondent specifically admits that 
the Secretary of the United States Department of Agriculture has 
jurisdiction in this matter, neither admits nor denies the remain- 
ing allegations in the complaint, admits to the Findings of Fact set 
forth below, and waives: 

(a) Any further procedure; 

(b) Any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 



1336 



Volume 44, Number 3 



o ca ^ 





FINDINGS OP 



- Since 



d - On or about June 4 
-cess by swine to the 



, to the p^ent, the r , 
treatment of garbage to be 



n0t P re nt the 



used for the 



and leakproof containe 
6. On or about June 13 

ld - 



' Un or about J une IS 



t v garba ^ at his facility, 
the respondent fed garbage to 



and leakproof containe i * did n0t Store ^ov- 

9- On or about June 13 1&84 Z ed garba ^ e a t his facility. 
garbage into the Swine feeding a ' r ea reSP ndent aI1 Wed ^treated 

CONCLUSION 
ORDER 



MICHAEL O'CONNOR 1137 

Volume 44, Number 3 

(a) For so long as the Respondent shall pay one thousand dol- 
lars ($1,000.00) which shall be payable to the "Treasurer of the 
United States", by certified check or money order and which shall 
be forwarded to Kris H. Ikejiri, Office of the General Counsel, 
Room 2422 South Building, United States Department of Agricul- 
ture, Washington, D.C. 20250-1400, on or before June 1, 1985. 

(b) For as long as, within two years of the effective date of this 
Order, the respondent does not violate (as that term is defined in 
paragraph 2 infra) any provision of the Swine Health Protection 
Act or regulations issued thereunder. 

2. The term violate, as used in paragraph Kb) herein, means a 
violation found upon conviction (or upon affirmation of conviction, 
if appealed) or upon a final decision in a formal adjudicatory pro- 
ceeding before the Secretary (or upon affirmation of the Secretary's 
decision, if appealed), and if it is found that there is any such viola- 
tion of any term of this Order, the remaining seven thousand 
($7^000) held in abeyance shall become due and payable immediate- 
ly. This provision shall not preclude the seeking of additional civil 
penalties because of the subsequent violation or the referral viola- 
tion or the referral of any such alleged violation to the United 
States Department of Justice for possible criminal or civil proceed- 
ings. 



In re: MICHAEL O'CONNOR, AQ Docket No. 119. Decided May 3, 

1985. 

Civil Penalty. 

Mark Dopp, for complainant. 

Ernest Van Hooser, Kansas City, Mo., for respondent. 

Decision by Dorothea A, Baker, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Act of February 2, 
1903, as amended, (Act) (21 U.S.C. 111 and 120) by a complaint 
filed by the Administrator of the Animal and Plant Health Inspec- 
tion Service alleging that the respondent violated the Act and regu- 
lations promulgated thereunder (9 CFR 71.1 et seq. and 78.1 et 
seq.). The parties have agreed that this proceeding should be termi- 
nated by entry of the Consent Decision set forth below and have 
agreed to the following stipulations: 

1. For the purpose of this stipulation and the provisions of this 
Consent Decision only, the respondent specifically admits that the 



1138 ANIMAL QUARANTINE AND RELATED LAWS 

Volume 44, Number 3 

Secretary of the United States Department of Agriculture has ju- 
risdiction in this matter, neither admits nor denies the remaining 
allegations in the complaint, admits to the Findings of Fact set 
forth below, and waives: 

(aj Any further procedure; 

(b) Any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issue of fact, law, or discretion, as well as the reasons or bases 
thereof; 

(c) All rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waives any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(5 U.S.C. 504 et seq.) for fees and other expenses incurred by the 
respondent in connection with this proceeding. 

FINDINGS OF FACT 

1, Michael O'Connor, respondent is an individual whose mailing 
address is Post Office Box 487, Marble Falls, Texas 78654. 

2. On or about December 16, 1983, the respondent moved 23 head 
of cattle from Georgetown, Texas, 17 head from Lampasas, Texas, 8 
head from San Saba, Texas, and 7 head from Llano, Texas, for a 
total of 55 head, to Fall River, Kansas. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following order in 
disposition of this proceeding, such order and decision will be 
issued. 

ORDER 

The respondent is assessed a civil penalty of five hundred dollars 
($500). The respondent shall send, payable to the "Treasury of the 
United States" a certified check or money order, to Mark D. Dopp, 
Office of the General Counsel, Room 2422 South Building, United 
States Department of Agriculture, Washington, D.C. 20250, within 
thirty (30) days from the effective date of this order. 



FRED SPREWELL 
Volume 44, Number 3 

In re: FIIED SPREWELL, AQ Docket No. 144. Decided May 3, 1985. 

Civil Penalty. 

Sherrie Kopka, for complainant. 
Respondent, pro se. 

Decision by Dorothea A. Baker, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Act of February 2, 
1903, as amended, (Act) (21 U.S.C. 111 and 120), by a Complaint 
filed by the Administrator of the Animal and Plant Health Inspec- 
tion Service alleging that the respondent violated the Act and regu- 
lations promulgated thereunder (9 CFR 78.1 et seq.l The parties 
have agreed that this proceeding should be terminated by entry ol 
the Consent Decision set forth below and have agreed to the follow- 

ing stipulations: ,. 

1 For the purpose of this stipulation and the provisions ot this 
Consent Decision only, the respondent admits specifically that the 
Secretary of the United States Department of Agriculture has ju- 
risdiction in this matter, admits the Findings of Facts set forth 
below, and waives: 

(a) Any further procedure; _ 

(b) Any requirement that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 



(c) All rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2 Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party in the pro- 
ceeding and waives any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 19BO 
(5 U.S.C. 504 et seq.) for fees and other expenses incurred by the 
respondent in connection with this proceeding. 

FINDINGS OF FACT 

1 Fred Sprewell, respondent, is an individual whose mailing ad- 
dress is Route 2, Box 267, Carrollton, Georgia 30117. 

2 On or about February 9, 1988, the respondent moved interstate 
approximately three (3) cows from Roanoke Stockyards, Inc., in .Ro- 
anoke, Alabama to Carroll County Livestock Sales Barn, Inc. in 

C Tonor Sou? February 16, 1983, the respondent moved inter- 
state at least two (2) cows from Roanoke Stockyards, Inc. in Roa- 



1140 ANIMAL QUARANTINE AND RELATED LAWS 

Volume 44, Number 3 



Barn, Inc . in Car- 



CONCLUSIONS 



having agStlhe S admitt6d the *^1 facts and 



of hi in the foll g Order in 



on o pr o 1 

issued. J "seeding, such Order and Decision will be 

ORDER 

hundred 6 'IZ^'si 2 a oTo S S > d T'"' ^"^ f " e 

($1,000.00) shall be heW in a t 61 j One thousand do "^s 

payable: " '" abeyance and wi not become due and 



this Order, respondent do s n /f r f the effective dflte of 

Paragraph 2 4") any p visbn "' ! t^' '"T " defined ta 
gated thereunder. provislon of the Act or regulations promul- 



upon ' 

if appealed) or upon a fi n d eoi ' "^ 'f rmation ot co "viction, 
ceeding before the Secrete' (or u Ton IV f ma ' adjudicato ^ P- 
decision, if appealed). If it " found thatch" 1 ' n f "" SeCretary ' S 
of any term of this Order rhV . ' S My such viola on 



. 

of any term of this Order rh . 

shall become du and pavabll r"/ 'V^ 00 held in 

not preclude the refcraf of anvsu7f: ly - TWS P Visi n sha " 
Department of Justi e fo P0 sl lp "?*?* t0 the U ^* States 

This Order shall become'elctt , 2 H" ^ Pr CeedingS ' 
of this Order is made upon S^ *" UP n Whi * 



ROBERT E. CHASTAIN, JR. 1141 

Volume 44, Number 3 

In ^ROBERT E. CHASTAIN, JR., AQ Docket No. 62. Decided May 5, 

Transporting livestock without certificate-Default. 

Joseph Pembroke, for complainant 

Respondent, prose. 

Decision by Dorothea A. Baker, Administrative Law Judge. 

DECISION AND ORDER 

This proceeding was instituted under the Act of February 2 
1903, as amended (Act (21 U.S.C. S 111 120 and IPPWA^K 

SB S ^S^ ws promulgated th 

Copies of the complaint and the Rules of Practice governing pro- 
^ * 



M Section U36 of th e Rles of Practice (7 CFR 1 136) 
applicable to this proceeding, respondent was informed in the com 
plamt and the letter of service that an answer should be filed wTh 

lint and g th s r f ? ? ^ enty (20) dayS after Ser e of the co - 
plamt and that failure to file an answer either denying, admitting 

or explammg the allegations in the complaint and requesting an 
oral hearing would constitute an admission of such allegations and 
a wawer of such hearing. More than twenty (20) days have elapsed 
since Respondent was served with the complaint in question R e 
spondent has not filed an answer to date. This Decision and Order 
therefore ,s issued pursuant to sections 1.136 and 1.139 of the 
1 139) applicable to this proceeding (7 CFR 1.136 and 

Accordingly the material facts alleged in the complaint, which 
are admitted by respondent's failure to file an answer, are adopted 
and set forth herein as the findings of fact. 

FINDINGS OP PACT 

1. Robert E. Chastain, Jr. is an individual, d/b/a Chastain Texas 
Longhorn Ranch, whose address is Route 6, Box 217-A Thomas- 
ville, Georgia, 31792. 

2. On or about November 16, 1983, Respondent shipped interstate 
one bull from Thomasville, Georgia, to Yuma, Colorado, in viola- 
tion of section 78.9(c)(3) of the Regulations, because the bull, which 



ANIMAL QUARANTINE AND RELATED LAWS 
Volume 44, Number 3 



was moved interstate from a Class B state other than for imm.ili. 
ate slaughter or to a quarantined feedlot, was moved unaeeompa- 
nied by a certificate, as required 

one b ulIfrom TL N m OVe t er p 6 ' ^ ReS P" de "t WPP1 
o ec 1 789^7 f S lf ' Ge , rgla * Yuma ' Col rad ' ' 

for bruc^^^rx P ii^ rtf r? founcl iK ' w " iv " 

required. he intei 'stato movemont, an 

^. On or about 
one bull from 
of section 71.18 of the 
' years of agB, 
-vner's statement 
mation, as required. 



bul1 ' which 

orn . 1100 ^^^ by ,,n 

docum ent containing prescribed inf (II , 

CONCLUSION 



Thorefore, the foHowtg 



.fl* "et forth above, ,,- 



ORDER 



' ' 



WILFRED PLANT FARM 1143 

Volume 44, Number 3 



A0 nM ' 

, AQ Docket No. 57. Decided May 10, 1985. 
Feeding garbage to swine Consent. 

Sherrie Kopka, for complainant. 

Robert Kelly, Mansfield, MA., for respondent. 

Decision by Dorothea A. Baker, Administrative Law Judge. 

CONSENT DECISION 

This Proceeding was instituted under the Swine Health Protec- 
tion Act (7 CFR 3801 et seq .) (Act) by a Complaint filed by the Ad- 
miniBtrator of the Animal and Plant Health Inspection Service al- 
K?Qno\ , 6 res P ndents vi ^ated section 4 of the Act (7 U S C 
&d80d) and section 166.2 of the regulations (9 CFR 1662) The 
parties have agreed that this proceeding should be terminated by 
entry of the Consent Decision set forth below and have agreed to 
the following stipulations: 

, n F r ?S p . urposes of this stipulation and the provisions of 
this Consent Decision only, respondents admit specifically that the 
Secretary of the United States Department of Agriculture has ju- 
risdiction in this matter, admit the Findings of Fact set forth 
below, and waive: 

(a) Any further procedure; 

(b) Any requirement that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 
tnereof; 

(c) All rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondents also stipulate and agree that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waive any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(b U,b.C. 504 et seq.) for fees and other expenses incurred by the 
respondents in connection with this proceeding. 

FINDINGS OP FACT 

1. Edward Plante and Wilfred Plante, respondents, are individ- 
uals whose business address is 108 Oak Street, Norton, Massachu- 
setts 02266, and who are doing business as Wilfred Plante Farm 

2. On or about February 18, 1983, the respondents fed garbage to 
swine. 

3. On or about March 22, 1983, the respondents fed garbage to 
swine, 



1144 ANIMAMJUAHAN'MNKANM HKTAn.i' 3 AV, -. 



;t 



n On or about April 2MM. . ...... , ..... 

r ab Ut Jl ^ ai l!) ;) . < n-. ...... I-.,, , ..... r ..... , w . ,,, 

about Septembo,...,. MR,. lll( . n ., 1|lt( , ll( ,., 11; ..... , ^ 



' 1111 ....... ' 



Res Pondents 



hereby 



h 



Thisr 



? 

- 



i^^li||| 



MIMS MEAT CO. AND DONALD LYNN BUSH 1145 

Volume 44, Number 3 



thTeof; ' ' aW ' r SCret n ' 3S We " as the * or bases 



or 



2 Respondent also waives any action against the United States 

Tusc^ofr TfV he Equal Access to J^K 

ot 1980 (5 U.S.C. 504 et seq.} for fees and other expenses incurred 
by the respondent in connection with this proceeding. 

FINDINGS OF FACT 

1. Becky Jo Raffelli, respondent, is an individual whose mailing 
address 1S 6405 Springwood, Texarkana, Texas 75503 g 

int P ^f 0r f abOUt / ebrUary A 31 1984 ' the Despondent moved a horse 
kana " ' Al ' kanSaS> t0 itS h me fann at 



CONCLUSIONS 

The Respondent having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following Order i 
Jo S STr n ^^ -ith respect to respondent Ms 
Jo Raffelh, such Order and Decision will be issued. 



ORDER 



Tl, Of two hundred an 

. The respondent shall send a certified check or monev 

0<0 able * t " of 



jup n, e 

to Jaru Ruley Office of the General Counsel, Room 2422, South 

DC ? n o^0 -^- S l teS ^^ of Agriculture, Washington, 
D.C., 20250, within thirty (30) days from the effective date of this 



" "Nnr/'f ^ ^S" Md D NALD LYNN BuSH - A Q Docket 
No. 13, Decided May 17, 1985. 

Interstate movement of cattle-Civil Penalty-Consent. 

Kevin Thiemann, for complainant. 
Respondent, pro se, 

Decision by Dorothea A. Baker, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Act of February 2 
1903, as amended, (Act) (21 U.S.C. 111,120 and 122) by a com' 



1146 ANIMAL QUARANTINE AND RELATED LAWS 

Volume 44, Number 3 

plaint filed by the Administrator of the Animal and Plant Health 
Inspection Service alleging that Minis Meat Company, Inc., and 
Donald Lynn Bush, respondents, violated the Act and regulations 
promulgated thereunder (9 CFR 78.1 et seq.). The parties have 
agreed that the proceeding should be terminated by entry of the 
Consent Decision set forth below and have agreed to the following 
stipulations: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondents specifically admit that the 
Secretary of the United States Department of Agriculture has ju- 
risdiction in this matter, neither admit nor deny the remaining al- 
legations in the complaint, admit to the Findings of Fact set forth 
below, and waive: 

(a) Any further procedures; 

(b) Any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 
thereof; 

(c) All rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondents also stipulate and agree that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waive any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(5 U.S.C. 504 et seq.} for fees and other expenses incurred by the 
respondents in connection with this proceeding. 

FINDINGS OF FACT 

1. Mims Meat Company, Inc., respondent, is a slaughter estab- 
lishment whose mailing address is Rt. 1 Box 300, Lufkin, Texas 
75901. 

2. Donald Lynn Bush, respondent, is an individual whose mailing 
address is Rt 2 Box 1050, Center, Texas 75935. 

3. On or about January 27, 1983, respondent Mims Meat Compa- 
ny, Inc., moved approximately six (6) cattle interstate from Bossier 
City, Louisiana to Lufkin, Texas. 

4. On or about September 10, 1983, respondents Mims Meat Com- 
pany, Inc., and Donald Lynn Bush moved approximately eleven (11) 
cattle from Bossier City, Louisiana to Lufkin, Texas, 

CONCLUSIONS 

The respondents having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following order in 



JIM DOSS, RONALD EHRLICH & DR. PHILLIP SMITH, D.V.M. 1147 
Volume 44, Number 3 

disposition of the proceeding, such order and decision will be 
issued. 

ORDER 

Respondent Mims Meat Company, Inc., is assessed a civil penalty 
of seven hundred fifty dollars ($750.00) and respondent Donald 
Lynn Bush is assessed a civil penalty of one hundred dollars 
($100.00) which shall be payable to the "Treasurer of the United 
States" by certified check or money order, and which shall be for- 
warded to Kevin B. Thiemann, Office of the General Counsel, 
United States Department of Agriculture, Room 2422 South Build- 
ing, 12th and Independence Ave., S.W., Washington, D. C. 20250- 
1400, within thirty (30) days from the effective date of this order. 



In re; JIM Doss, RONALD O. EHRLICH and DR. PHILLIP SMITH, D.V.M. 
AQ Docket No. 136. Decided May 17, 1985. 

Interstate Movement of cattle. 

Thomas Bundy, for complainant. 

T. L. Rees, Colorado City, Texas, for respondent. 

Decision by Edward H. McGrail, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Act of February 2, 
1903, as amended (Act) (21 U.S.C. 111, 120 and 122) by a com- 
plaint filed by the Administrator of the Animal and Plant Health 
Inspection Service alleging, inter alia, that Jim Doss, respondent, 
violated the Act and regulations promulgated thereunder (9 CFR 
78.1 et seqO. The parties have agreed that the proceeding with re- 
spect to respondent Jim Doss should be terminated by entry of the 
Consent Decision set forth below and have agreed to the following 
stipulations: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondent Jim Doss specifically admits 
that the Secretary of the United States Department of Agriculture 
has jurisdiction in this matter, neither admits nor denies the re- 
maining allegations in the complaint, admits to the Findings of 
Fact set forth below, and waives: 

(a) any further procedure; 

(b) any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 



1 MS ANIMAL QUARANTINE AND RELATED LAWS 

Volume 44, Number 3 

issues of fact, law, or discretion, as well as the reasons or 
thereof; 



(c) all rights to seek judicial review and otherwise 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United StaloH 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding : and _ waives any action against the United States Depart- 
g ^ " ne he Ec * ual AcoeBB to Justice Act of 1 1 



_ 

rt Tl V? s g ST /^ " n / e V he Ec * ual AcoeBB to Justice Act of 1 1> W 
to U.S.C. 504 e t seq.) for fees and other expenses incurred by Lhe 
respondent in connection with this proceeding. 



FINDINGS OF FACT 



CONCLUSIONS 

The respondent having admin^r fu -,.. 
having agreed to the P^^^fo^ ^f^ *"*! 
d.apos.tion of the proceeding, such orde r wS be isS " ""^ '" 

ORDER 

f five hundred 



States" by certified check or monev^. T^ f the Uni t' 
warded to Fronda C. Woods Offi,7 ft?' ^ which sha be for- 
2422 South Buiiding, u^ t S e d f ^ e f *^n-.a! Counsel, Roo.n 
Washington, D. C. 20250-1400 w thta ?? "' f Apteulture, 
fective date of this order. " thlrty (8( d W from the ef- 




ln n: LASRY MJNO d/b/a BAM ^ 

No. 128. Decided ,j S^^ P ' Co MPANY . AQ Dooket 



Law J udse 



complaint 



R&M FEEDER PIG COMPANY 1149 

Volume 44, Number 3 

filed by the Administrator of the Animal and Plant Health Inspec- 
tion Service, United States Department of Agriculture. The com- 
plaint alleged that respondent Larry Mino, d/b/a R&M Feeder Pig 
Company, violated sections 111 and 120 of the Act (21 U.S.C, 111 
and 120) and section 76.6 of the regulations promulgated thereun- 
der (9 CFR 76.6). Copies of the complaint and Rules of Practice 
governing proceedings under the Act were served by the Hearing 
Clerk, by certified mail, upon respondent, Mr. Mino. 

Pursuant to section 1.136 of the Rules of Practice (7 CFR 1.136) 
applicable to this proceeding, Mr. Mino was informed in the com- 
plaint and the letter of service that an answer should be filed with 
the Hearing Clerk within twenty (20) days after service of the com- 
plaint, and that failure to file an answer to, or plead specifically to, 
any allegations in the complaint would constitute an admission of 
such allegation pursuant to section 1.136(c) of the Rules of Practice 
(7 CFR 1.136(c)>. The respondent was also informed that the fail- 
ure to file an answer would constitute a waiver of hearing, as pro- 
vided in section 1.139 of the Rules of Practice (7 CFR 1.139). 

The respondent filed no answer during the twenty-day period al- 
lowed. Respondent's failure to file an answer within the time pro- 
vided constitutes an admission of the allegations in the complaint, 
pursuant to section 1.136(c) of the Rules of Practice (7 CFR 
1.136(c)). Respondent's failure to file an answer also constitutes a 
waiver of hearing under section 1.186 of the Rules of Practice (7 
CFR 1.139). Since respondent is deemed to have admitted the ma- 
terial allegations of fact in the complaint, they are adopted and set 
forth as the Findings of Fact. 

FINDINGS OF FACT 

1. Larry Mino, doing business as, R&M Feeder Company, herein 
referred to as the respondent, is an individual whose address is 
Rural Route 2, Conrad, Iowa 50621. 

2. On or about August 24, 1983, the respondent moved approxi- 
mately 336 swine, interstate from Montgomery City, Missouri, to 
Conrad, Iowa, in violation of section 76,6(b)(3) of the regulations, be- 
cause the swine were not accompanied by an inspection certificate 
issued by the Veterinary Services or State inspector or accredited 
veterinarian, as required. 

3. On or about November 23, 1983, the respondent moved ap- 
proximately 258 swine interstate from Paris, Missouri to Conrad, 
Iowa, in violation of section 76.6(b)(3) of the regulations, because 
the swine were not accompanied by an inspection certificate issued 
by the Veterinary Services or State inspector or accredited veteri- 
narian, as required. 



Volume 44, Number 3 

4. On or about January 13, 1984, the respondent moved approxi- 
mately 466 swine interstate from Paris, Missouri to Conrad Iowa, 
in violation of section 76,6(bJ(3) of the regulations, because the 
swine were not accompanied by an inspection certificate issued by 
the Veterinary Services or State inspector or accredited veterinari- 
an, as required. 

5. On or about February 10, 1984, the respondent moved approxi- 
mately 157 swine interstate from Paris, Missouri to Conrad Iowa, 
m violation of section 76.6(bJ(3) of the regulations, because the 
swine were not accompanied by an inspection certificate issued by 
the Veterinary Services or State inspector or accredited veteriiiari- 
an, as required. 

CONCLUSION 

The respondent has failed to file any answer to any of the allega- 
tion* in he complaint. The consequences of such a failure were ex- 
plained to the respondent in the complaint and in th? fcTr of 



--, 






ORDER 



Respondent Larry Mine, d/b/a R&M Feeder Pier Pnmn 

South Building Washington Un ted S t n ^^ R m 2422 > 
ture, Washington, D. C ?0250 1400 De P art t of Agricul- 



nave the same force and effect a< 
auxsi IULI neanne anH dioii i, r- i , cjicui, a& 

service of this D^dsion t, ^ "? t ^* 3 
there is an appeal to the Judictel Offici n ^ "f P nd 

of the Rules of Practice appHcablf to ^^ * S60ti n 1J4G 
1.145). Applicable to this proceeding (7 CFR 



JIM DOSS, RONALD EHRLICH, & DR. PHILLIP SMITH 1151 

Volume 44, Number 3 

In re: JIM Doss, RONALD O. EHRLICH, and DR. PHILLIP SMITH AQ 
Docket No. 136. Decided May 29, 1985. 

Interstate movement of cattle. 

Thomas Bundy, for complainant. 
Respondent, pro sc. 

Edward H. McGrail, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Act of February 2, 
1903, as amended (Act) (21 U.S.C. 111, 120 and 122) by a com- 
plaint filed by the Administrator of the Animal and Plant Health 
Inspection Service alleging, inter alia, that Dr. Phillip Smith, re- 
spondent, violated the Act and regulations promulgated thereunder 
(9 CFR 78.1 et seq.). The parties have agreed that the proceeding 
with respect to respondent Dr. Phillip Smith should be terminated 
by entry of the Consent Decision set forth below and have agreed 
to the following stipulations: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondent Dr. Phillip Smith specifical- 
ly admits that the Secretary of the United States Department of 
Agriculture has jurisdiction in this matter, neither admits nor 
denies the remaining allegations in the complaint, admits to the 
Findings of Fact set forth below, and waives: 

(a) any further procedure; 

Cb) any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 
thereof; 

(c) all rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waives any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(5 U.S.C. 504 et seq,') for fees and other expenses incurred by the 
respondent in connection with this proceeding. 

FINDINGS OF FACT 

^ Dr ' P lip Smith) D ' V ' M " respondent, is an individual whose 
address is 731 North 7th Street, Abilene, Texas 79601. 

2. On or about June 7, 1984, respondent caused to be moved at 
least one cow from Abilene, Texas to Milliken, Colorado. 



1152 ANIMAL QUARANTINE AND RELATED LAWS 

Volume 44, Number 3 

CONCLUSIONS 



the jurisdictional facts and 

-. .- provisions set forth in the following orrter in 

deposition of the proceeding, such order will be issued 

ORDER 

doSLVSfwhich a sh eSSed 9 dVJ1 Penalty f tW hundred nCty 

1^^ 

Room 2422 South Building, United States K^riSi? 1101 - 
ure Washington, D. C. 20250-1400, within thirty (30) davs f ' 
the effective date of this order. y 



A m- ELMO MAYES, AQ Docket No. 34. Decided June 2, 1985. 
Interstate movement of bovine animal without certificate-Default. 
Thomas Bundy, for complainant. 
Respondent, 



Vision by William J. Weber, Administrative La w J udge . 
DECISION AND ORDER DEFAULT 



roceedins under tK we^se *ed ^ f PraC ' iCe g r "- 
SS rf ^ R f S f Pract - (7 CFR j U86) 
K^X^l WaS in l rmed in , com- 

"* OMk within twenty (20) d fl rT "^ be ffled with 
ana 'thst faUure to fi r"^ W0) da y s after service of the com- 

^ iBtooomp aint ZT7 t0 ' " P ]ead ' ^'ally , 
^ 1W *^ec^ ^isaion of 



ELMOMAYES 1153 

Volume 44, Number 3 

The respondent filed no answer during the twenty-day period al- 
lowed. Respondent's failure to file an answer within the time pro- 
vided constitutes an admission of the allegations in the complaint, 
pursuant to section 1.136(c) of the Rules of Practice (7 CFR 
1.136(c)). Respondent's failure to file an answer also constitutes a 
waiver of hearing under section 1.139 of the Rules of Practice (7 
CFR 1.139). Since respondent is deemed to have admitted the ma- 
terial allegations of fact in the complaint, they are adopted and set 
forth as the Findings of Fact. 

FINDINGS OP FACT 

1. Elmo Mayes, herein referred to as the respondent, is an indi- 
vidual whose address is Cumberland Gap, Tennessee 37724. 

2. During the period from on or about March 2, 1983 through 
March 8, 1983, respondent moved interstate at least one bovine 
animal from Knoxville, Tennessee to Oakwood, Illinois, in violation 
of section 71.18 of the regulations (9 CFR 71,18) because the 
animal was not accompanied interstate by an owner's statement or 
other document, as required. 

3. During the period from on or about March 2, 1983 through 
March 8, 1983, respondent moved interstate at least one bovine 
animal from Knoxville, Tennessee, a Class 3 state, to Oakwood, Illi- 
nois, in violation of section 78.9(c) of the regulations (9 CFR 
78.9(c)), because the animal was not accompanied interstate by a 
certificate or other document, as required. 

4. During the period from on or about January 29, 1983 through 
February 8, 1983, respondent moved interstate at least six bovine 
animals from Crossville, and Kingsport, Tennessee, to Oakwood, Il- 
linois in violation of section 71.18 of the regulations (9 CFR 71.18) 
because the animals were not accompanied interstate by an 
owner's statement or other document, as required. 

5. During the period from on or about January 29, 198S through 
February 8, 1983, respondent moved interstate at least six bovine 
animals from Crossville and Kingsport, Tennessee, a Class B state, 
to Oakwood, Illinois, in violation of section 78.9(c) of the regula- 
tions (9 CFR 78.9(c)) because the animals were not accompanied 
interstate by a certificate or other document, as required. 

6. During the period from on or about June 1, 1983 through June 
7, 1983, respondent moved interstate at least one bovine animal 
from Jonesboro, Tennessee, to Oakwood, Illinois, in violation of sec- 
tion 71.18 of the regulations (9 CFR 71.18) because the animals 
were not accompanied interstate by an owner's statement or other 
document, as required. 



ANIMAL QUARANTINE AND RELATED LAWS 
Volume 44, Number 3 



* ? i'o Hng the Peri d fr m On or about June L !983 through Jun< 
7, 1983, respondent moved interstate at least one bovine anima 
from Jonesboro, Tennessee, a Class B state, to Oakwood, Illinois, if. 
violation of section 78.9(c) of the regulations (9 CFR 78 9(c)> be 
cause the animal was not accompanied by a certificate or othei 
document, as required. 

CONCLUSION 

The respondent has failed to file any answer to any of the allega- 

S ?" < mpialnt -, The C0nse < of such a failure were f x- 
plamed to the respondent in the complaint and in the letter of 

" -pondent Ll 



set forth above, the respondent 
therefore issued. 

ORDER 

th ;l (3 ^! y l fr r, the eftei *** of thfsTr'def 2 250 ' mthl " 



service (7 CFR 1142fc)) O f th , n, *", ^^ SS ^ after 

unless there fs Itpp a f * L S c T a ^ d ff . riBr .T > "**. 
suant to section U i of the Rule of ^pl? ' T^ 3 dayS PUr " 
ceeding (7 CFR 1.145, f Practlce a PPHcable to this pro- 



J. W. EASON, JR. AND JOE PAYNE 1165 

Volume 44, Number 3 

In re: J. W. EASON, JR. and JOE PAYNE, AQ Docket No. 125. Decided 
June 5, 1985. 

Interstate movement of cuttle. 

William Jenson, for complainant. 

Robert Puterbaugh, Lakeland, Florida, for respondent. 

Edward H. McGrail, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Act of February 2, 
1903, as amended (Act) (21 U.S.C. 111 and 120) by a complaint 
filed by the Administrator of the Animal and Plant Health Inspec- 
tion Service alleging that J.W. Eason and Joe Payne, respondents, 
violated the Act and regulations promulgated thereunder (9 CFR 
78.1 et seq.). The parties have agreed that this proceeding should 
be terminated by entry of the Consent Decision set forth below and 
have agreed to the following stipulations: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondents specifically admit that the 
Secretary of the United States Department of Agriculture has ju- 
risdiction in this matter, neither admit nor deny the remaining al- 
legations in the complaint, admit to the Findings of Fact set forth 
below, and waive: 

(a) any further procedure; 

(b) any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law or discretion, as well as the reasons or bases 
thereof; 

(c) all rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondents also stipulate and agree that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waive any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(5 U.S.C. 504 et se<?,) for fees and other expenses incurred by the 
respondents in connection with this proceeding, 

FINDINGS OF FACT 

1. J.W. Eason, Jr., respondent, is an individual whose mailing ad- 
dress is P.O. Box 938, Wauchula, Florida 33873. 

2. Joe Payne, respondent, is an individual whose mailing address 
is Rt. 1, Kaw City, Oklahoma 74641. 

3. On or about May 7, 1983, respondents moved at least five (6) 
cattle interstate from Wauchula, Florida, to New Mexico. 



1156 ANIMAL QUARANTINE AND RELATED LAWS 

Volume 44, Number 3 

4 On or about May 14, 1983, respondents moved at least six (G) 
cattle from Wauchula, Florida, to New Mexico. 

CONCLUSIONS 



and 

disposition of the proceding, suchew b" 8 O1 ' d r "' 

OKDBR 



money order, and whch sha 1 bet 'ff "? C<3rtified che <* 
Office of the OenlrllCo^ E^^l d * Willtam G. Jenaon, 



e enrlCo E . , 

Independence Ave, S.W Un rted S^tff n h Buildin e, 14th and 
Washington, D. C 20250-140f I ^ Department of Agriculture, 
festive date of this order ""^ (3W da y a from 'he oA 



E . ESH , AQ eced ^^ 

Inlerstate movement of cattle. 



for complainant. 
Despondent, 



CONSENT DECISION 

Aot 



r t the , Aot f ^ uary 2> 

he Administrator of the Ar?L a ^^ by a "nptalnt 
?. alleging that John E E s h and / lant Health Inspec- 



procedure; 



JOHNE. ESH 1157 

Volume 44, Number 3 

(b) Any requirement that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reason or bases 
thereof; 

(c) All rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also waives any action against the United States 
Department of Agriculture under the Equal Access to Justice Act 
of 1980 (5 U.S.C. 504 et seq.} for fees and other expenses incurred 
by the respondent in connection with the proceeding. 

FINDINGS OF FACT 

1. John E, Esh, respondent, is an individual whose address is 68 
Clearview Road, Ronks, Pennsylvania 17572. 

2. On or about July 14, 1983, the respondent moved interstate 21 
cattle, over two years of age, from Ronks, Pennsylvania, to Stoney 
Point, North Carolina. 

3. On or about July 24, 1983, the respondent moved interstate 18 
cattle, over two years of age, from Quarryville, Pennsylvania, to 
Stoney Point, North Carolina. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following Order in 
disposition of this proceeding with respect to respondent John E, 
Esh, such Order and Decision will be issued. 

ORDER 

The respondent, John E. Esh, is assessed a civil penalty of three 
hundred dollars ($300.00) which shall be payable in three equal in- 
stallments to the "Treasurer of the United States" by certified 
check or money order and shall be forwarded to Jaru Ruley, Office 
of the General Counsel, Room 2422-South Building, United States 
Department of Agriculture, Washington, D.C. 20250-1400. The first 
installment of $100.00 is due on June 1, 1985, with the second in- 
stallment of ?100.00 due on July 1, 1985, and the third and final 
installment of $100.00 due on August 1, 1985. In the event of a de- 
fault, the remaining balance will become due immediately. 



1158 



ANIMAL QUARANTINE AND RELATED LAWS 
Volume 44, Number 3 



In re: Ho, TKOUT & SON, I NC ., AQ Docket No. 162. Decided Juno II, 

Movement of eggs from quarantined area. 

Krislkejiri, for complainant. 
Respondent, pro se. 

Decision by William J. Weber, Administrative Law 
CONSENT DECISION AND OUDBK 



as amended, (21 U.S.C. 
by the Administrator of the 
Service, aHeging that E ? Roy 



f J "'.V 



'"' 



stipulations: 



of 



specifically that 



to the followinj; 



the provisiona of 
Roy Trout and Son, 



. 
nor denies the remaining 



, 

matter ' neithw " 



and otherwise 



n ' Sproceed gand waiv g UtUre is th "P- 
l '- Roy Trout ^ FINDINGS PP ACT 



DEWEY L. BOYDSTON 1159 

Volume 44, Number 3 

2. On or about September 6, 1984, the respondent moved inter- 
state from Paradise, Pennsylvania, a quarantined area pursuant to 
Title 9, Code of Federal Regulations, section 81.4, to Woodridge, 
New York, approximately 230,400 poultry eggs for use as food. 

CONCLUSION 

Respondent E. Roy Trout and Son, Inc., having admitted the ju- 
risdictional facts and having agreed to the provisions set forth in 
the following order in disposition of this proceeding, such Order 
and Decision will be issued. 

ORDER 

Respondent E. Roy Trout and Son, Inc., is hereby assessed a civil 
penalty of two thousand dollars ($2,000.00) which shall be payable 
to the "Treasurer of the United States" by certified check or 
money order, and which shall be forwarded to Kris H. Ikejiri 
Office of the General Counsel, Room 2422, South Building, United 
States Department of Agriculture, Washington, D. C, 20250-1400, 
within thirty (30) days from the effective date of this order. 



In re: DEWEY L. BOYDSTON, AQ Docket No. 169. Decided June 12 
1985. 

Interstate movement of livestock, 

Kris Ikejiri, for complainant. 

Robert Laster, Grenada, MS., for respondent. 

Decision by William J, Weber, Administrative Law Judge. 

CONSENT DECISION AND ORDER 

This proceeding was instituted under the Act of February 2, 
1903, as amended, (21 U.S.C. 111 and 120), by a complaint filed 
by the Administrator of the Animal and Plant Health Inspection 
Service, alleging that Dewey L. Boydston violated the Act and reg- 
ulations promulgated thereunder (9 CFR 71.1 et seq,l Respondent 
Dewey L, Boydston and the complainant have agreed that this pro- 
ceeding should be terminated by entry of the Consent Decision set 
forth below and have agreed to the following stipulations: 

1. For the purpose of this stipulation and the provisions of this 
Consent Decision only, respondent Dewey L. Boydston admits spe- 
cifically that the Secretary of the United States Department of Ag- 
riculture has jurisdiction in this matter, neither admits nor denies 



1160 



ANIMAL QUARANTINE AND RELATED LAWS 
Volume 44, Number 3 



plaint ' 

(a) Any further procedure- 



and otherwise challense 

FINDINGS OP PACT 



en 
Alabama of one bull ' " ^ MiSSisSippi to 



CONCLUSION 



ing^rdeM^dLnoartlTnf^ 6 provisions set forfc h in the follow 
sionwillbelsued P^ceeding, such Order and Deer 

ORDER 

, is hereby assessed a civil penalty 

AI. '11 t united States" hv piicmir ^- , 

**U be forwarded to ir,: T?^?* " mone y order ' "id 



orwarded t , , an 

, ROO at^ tt to *. H - kejiri, Office of the General 
., h Bmldmg, United States Department of 



JONATHAN STOLTZFUS 

Volume 44, Number 3 



Agriculture, Washington, D. C. 20250-1400, within thirty (30) days 
from the effective date of this order. 



In m- JONATHAN STOLTZFUS, AQ Docket No. 151. Decided June 17, 



Interstate movement of cattle without certificate. 

Jam Ruley, for complainant. 
Respondent, pro se. 

Decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDER 

This is an administrative proceeding for the assessment of a civil 
penalty for a violation of the regulations governing the interstate 
movement of cattle because of brucellosis (9 CFR 78.1 et seq ) An 
initial Decision and Order was issued on May 14, 1985, by Adminis- 
trative Law Judge Victor W. Palmer (ALJ) assessing a $500 civil 
penalty. 

On May 22, 1985, respondent filed a Motion of Dismissal of Pro- 
posed Decision and order, which is being treated as an appeal to 
the Judicial Officer, to whom final administrative authority has 

subject to 5 u ' s ' c - 



Respondent contends that "I did answer and explain the situa- 
tion and "I asked for a hearing" (Motion of Dismissal at 1). How- 
ever, respondent's answer does not deny that he moved 21 cattle, 
over 2 years of age, from North Carolina to Virginia on or about 
June 6, 1983, that "were not accompanied interstate by a certifi- 
cate containing prescribed information, as required" by 9 CFR 
78.9(b)(3). Accordingly, the ALJ properly issued the initial Deci- 
sion and Order without a hearing, 

Respondent's claim that the Department lacks jurisdiction be- 
cause of a "private sealed document held by the Defendant" is dis- 
missed as frivolous. Accordingly, the ALJ's initial Decision and 

1 The position of Judicial Officer was established pursuant to the Act of April 4, 
1940 (7 U.S.C. 450c-450g), and Reorganization Plan No, 2 of 1963, 18 Fed Reg* 
3219 (1958), reprinted in 6 U.S.C. app. at 1068 (1982), The Department's present Judi- 
cial Officer was appointed in January 1971, having been involved with the Depart- 
ment's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' 
appellate litigation relating to appeals from the decisions of the prior Judicial Offi- 
cer; and 8 years as administrator of the Packers and Stockyards Act regulatory pro- 
gram). 



1 1 62 ANIMAL QUARANTINE AND RELATED LAWS 

Volume 44, Number 3 

Order is adopted as the final Decision and Order in this case, 
except that the effective date of the order is changed, in view of the 
appeal. 

ADMINISTRATIVE LAW JUDGE'S DECISION 

This is an administrative proceeding for the assessment of a civil 
penalty for a violation of the regulations governing the interstate 
movement of cattle because of brucellosis (9 CFR 78.1 et seq.\ 
hereinafter referred to as the regulations, in accordance with the 
Rules of Practice in 9 CFR 70.1 et seq. and 7 CPR 1.130 et seg. 

This proceeding was initiated by a complaint filed on February 
12, 1985, by the Administrator of the Animal and Plant Health In- 
spection Service, United States Department of Agriculture The 
complaint alleged that on or about June 6, 1983, the respondent 
moved interstate 21 cattle, all over two years of age, from Stoney 
Point, North Carolina, to Independence, Virginia, in violation of 
section 78.9(b)(3) of the regulations (9 CFR 78.9(b)(3)), in that the 
cattle were not accompanied by a certificate containing prescribed 
information, as required. In his answer, the respondent states only 
that [n]o violation was intended" and the cattle . . . were tested 
for interstate shipment or they could not have gotten out of 
Canada." The complaint does not allege that the cattle were not 
tested, but that no certificate accompanied the cattle. Respondent 
has failed to deny or otherwise respond to the allegation which is 
pursuant to section U36(c) of the Rules of Practice (7 CFR 
1.136(c)), deemed, for purposes of this proceeding, an admission of 
said allegation. 

Accordingly, the material facts alleged in the complaint are 
adopted and set forth herein as the findings of fact, and this deci- 
sion is issued pursuant to section 1,139 of the Rules of Practice ap- 
plicable to this proceeding (7 CFR 1.139). 

FINDINGS OF FACT 

1. Respondent, Jonathan Stoltzfus, is an individual whose mail- 
ing address is RD 2, Box 101, Stoney Point, North Carolina 28678 

2. On or about June 6, 1983, the respondent moved interstate 21 
cattle, all over two years of age, from Stoney Point, North Caroli- 
na, to Independence, Virginia, in violation of section 78.9(b)(3) of 
the regulations (9 CFR 78.90*8)). in that the cattle were not ac- 
companied by a certificate containing prescribed information, as re- 



CHARLES BAAS 1163 

Volume 44, Number 3 

CONCLUSION 

By reason of the facts contained in Findings of Fact 1 and 2 
above, respondent has violated section 78.9(b}(3) of the regulations 
(9CFR78.9(b)(3)). 

Therefore, the following order is issued. 

ORDER 

Respondent, Jonathan Stoltzfus, is hereby assessed a civil penal- 
ty of five hundred dollars. This penalty shall be payable to the 
"Treasurer of the United States" by certified check or money 
order, and shall be forwarded to Jaru Ruley, Office of the General 
Counsel, Room 2422, South Building, United States Department of 
Agriculture, Washington, D.C. 20250-1400, within thirty (30) days 
from the effective date of this order. This order shall become effec- 
tive on the day it is served on respondent. 



In re: CHARLES BAAS, AQ Docket No. 143. Decided May 15, 1985. 

Interstate movement of breeding swine without certificate; movement for reasons 
other than slaughter; and other than to n quarantined herd or fcedlot, 

Jaru Ruley, for complainant. 
Respondent, pro se. 

Decision by Edward H. McGrail, Administrative Law Judge. 

DECISION AND ORDER 

This is an administrative proceeding for the assessment of a civil 
penalty for a violation of the regulations governing the interstate 
movement of swine because of brucellosis and pseudorabies (9 CFR 
78.1 et seq. and 85.1 et seq.), hereinafter referred to as the regula- 
tions, in accordance with the Rules of Practice in 9 CFR 70,1 et 
seq. and 7 CFR 1.130 et seq, 

This proceeding was initiated by a complaint filed on January 4, 
1985, by the Administrator of the Animal and Plant Health Inspec- 
tion Service, United States Department of Agriculture, The com- 
plaint alleged that on or about March 20, 1984, the respondent 
moved interstate three breeding swine from a farm at West Bend, 
Iowa, to a farm at Stewartville, Minnesota, in violation of sections 
78,29(a) and 85.6 of the regulations (9 CFR 78.29(a) and 85.6), in 
that the swine were not accompanied interstate by a certificate 
containing prescribed information and were moved interstate other 
than for slaughter, and other than to a quarantined herd, or to a 
quarantined feedlot. In his answer, the respondent admitted the al- 



1164 ANIMAL QUARANTINE AND RELATED LAWS 

Volume 44, Number 3 

legations in the complaint. In accordance with section 1 139 n f tfc 
Rules of Practice (7 CFR 1.139), such admission constitutes* 
waiver of a hearing. es a 

Accordingly, the material facts alleged in the complaint are 
adopted and set forth herein as the findings of fact, and this dec? 
sion is issued pursuant to section 1.139 of the Rules of PmnH J 
plicable to this proceeding. (7 CFR 1.139). IC6 ap> 

FINDINGS OP FACT 

1. Respondent, Charles Baas, is an individual whose mailW a , 
dress is Route 2, West Bend, Iowa 50597 g ad " 

Stewartville, Minnesota i-nvtif , 8nd ' Iowa ' to a f a at 
(9 CFR 



tions (9 CFR 856b ec ; u se e swin SeC n ' 6 f the ^ 
than for slaughter and ot her tC fn W6re ""^ interState Other 
quarantined feedloi, as required H qUarantined her d r to a 



CONCLUSIONS 



= - .r 

Therefore, the following order i s i 



s i ssued . 
OHDER 



Gh i 



h ~ t^H- 

d 



KENNETH BURGESS 1 15 

Volumo 44, Number !1 

pursuant to ejection 1.145 of the Rules of Practice applicable to this 
proceeding (7 CFR 1.145). 



In re: KENNETH BUIIOESS, AQ Docket No. 1!). Decided Juno U7, l!Wr>. 
Intcmtule shipment 



Mark Dopji, for cumpliiimint, 
William K. Taylor, I'uducnli, KY., 1'nr 

Decision by John A. Campbell, Administmtivo Law Jud^c. 

rONHHNT DECISION 

This proceeding wan instituted under tho Act of February 2, 
190B, UH amended, (Act) (7 U.8.0. 111 and 1HO) by a complaint 
filed by the Administrator of the Animal and Plant Health Inspec- 
tion Service alleging that Konnoth liurgews, respondent, violated 
tho Act and regulations promulgated thereunder (9 CPU 7H.1 cl 
scq.l The parties have agreed that this proceeding should bo termi- 
nated by entry of the Consent Decision sot forth below and have 
agreed to tho following stipulations: 

1, For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondent specificnlly admits that the 
Secretary of the United States Department of Agriculture has ju- 
risdiction in thin matter, respondent does not admit any liability, 
but expressly denies liability; therefore, he neither admits nor 
denies the remaining allegations in the complaint, and ho IIUH en- 
tered into this Consent Decision for economic reasons only, and 
therefore admito to the Findings of Fact Hot forth below, and 
waives; 

(a) Any further procedure; 

(b) Any requirement that tho final decision in thia proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, aa well as the reasons or bases 
thereof; 

(c) All rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" under the cir- 
cumstances outlined in Paragraph 1 above, in the proceeding nnd 
waives any action against the United States Department of Agri- 
culture under the Equal Access to Justice Act of 11)80 (fi U.S.C. 
504 et seq.) for fees and other expenses incurred by the respond- 
ent in connection with this proceeding. 



ND 

44, Number 3 



' 



CONCLUSIONS 
respondent 



T , 

^ne respondent Kn ,, 

-S^:^f ifesr^T a civil ^ 

a "d which fh^f 6d Stated " ^ clrtiL p f ^ Payab ' to ll " ) 



M /v; GARY 

ff ^ 

Dismissal, 



, 






ANIMAL WELFARE ACT 11(57 

Volume 44, Number 3 

In re; AMERICAN AIRLINES, AWA Docket No. 326. Decided May 3, 
1985. 

Mandatory training of employees regarding transporting of animnls. 

Mary Hobble, for complainant. 

Richard J. Malakowski, DFW Airport, Texas, for respondent. 

Decision by Dorothea A. Baker, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted by a complaint filed by the Ad- 
ministrator of the Animal and Plant Health Inspection Service in 
accordance with the Rules of Practice Governing Formal Adjudica- 
tory Proceedings Instituted by the Secretary Under Various Stat- 
utes, 7 CPR 1.130-81 (1984). The complaint alleged that Respond- 
ent, American Airlines, has violated the Animal Welfare Act, 7 
U.S.C. 2131-56 (1982), and the regulations and standards issued 
thereunder, 9 CFR 1.1-3. 142 (1984). This decision is entered pur- 
suant to the consent decision provisions of the Rules of Practice 7 
CFR 1.138. 

The Respondent admits the jurisdictional allegations of the com- 
plaint but neither admits nor denies the remaining allegations in 
the complaint. The Respondent waives the right to a hearing and 
any further procedures. The parties consent to the issuance of this 
decision for the purpose of settling this matter, 

FINDINGS OF FACT 

American Airlines, hereinafter referred to as Respondent, is an 
airline carrier which is engaged in the business of transporting ani- 
mals in commerce for hire, and is incorporated in the State of 
Delaware, with a business address of P.O. Box 61616, Dallas/Fort 
Worth Airport, Texas. 

CONCLUSION 

Inasmuch as the Respondent has admitted the jurisdictional alle- 
gations of the complaint, the parties have agreed to the provisions 
of the following Order which Order shall be issued. 

ORDER 

1. Respondent will provide Complainant the use of its facilities, 
personnel and equipment at Washington National Airport (DCA) 
for the creation of a video-tape film to be made depicting the ac- 
ceptance, conveyance, holding and treatment of animals for trans- 
portation in commerce under the Animal Welfare Act. Respondents 
shall make the necessary arrangements for the cooperation of its 



ANIMAL WELFARE ACT 
Volume 44, Number 3 



personnel at National with the film-making within 3 , 
days) of this Order becoming effective. Weeks 

2. Respondent will require all personnel who directly , 
employees who handle animals to view the video4a De 3*? 
twining purposes. The video-tape film will also be sl'own , n" f r 
employees of Respondent who will have the dutv of 7 *?.*" ** 
mate for shipment or of handling anin^kTl / acce Pting ani- 
be shown to those new employefs as part oTtUf ^^ ^ ^ 



Newark 

JFK-New York 

BWl-Baltimore 

O'Hare-Chicago 

National-Washington 

Hartsfield-Atlanta 

Mmmi International-Miami 
Memphis 



Kansas City 
Salt Lake City 



os Angeles 
faFOSan Francisco 
Portland, Oregon 




"IITJI 

! ' S Set forth in the 
citiea/airportB. 



A. J. PRICHARD 1169 

Volume 44, Number 3 

days prior to the holding of a training session in the airport so that 
a representative of APHIS may be present at the training session 
for the purpose of answering questions. The Area Veterinarian in 
Charge will make every effort to have an APHIS representative 
present at each training session, but the responsibility of Respond- 
ent to hold the training sessions is not negated should the presence 
of an APHIS representative not be possible at any given training 
session. 

5. Respondent agrees to provide the equipment on which the 
training video-tape film can be shown at each training session. 



In re; A. J. PRICHARD, AWA Docket No. 335. Decided June 12, 1985. 
Cease and desist from violating Act. 

ft&bert Ertman, for complainant. 
Respondent, pro se. 

Decision by Victor W, Palmer, Administrative Law Judge. 

CONSENT DECISION AND ORDER 

This is a proceeding under the Animal Welfare Act, as amended. 
A. complaint issued by the Administrator of the Animal and Plant 
Health Inspection Service pursuant to the Act and the applicable 
Rules of Practice was served upon respondent, alleging that he 
acted as a dealer without being licensed as required. This decision 
Is entered pursuant to the consent decision provision of the Rules 
of Practice (7 CFR 1.138). 

Respondent admits the jurisdiction^ allegations of the com- 
plaint, specifically admits that the Secretary of Agriculture has ju- 
risdiction in this matter, neither admits nor denies the remaining 
allegations of the complaint, and waives hearing and further proce- 
dure herein. Complainant and respondent consent to the issuance 
of this order. 

ORDER 

Respondent is ordered to cease and desist from violating the 
Animal Welfare Act, as amended, and the regulations and stand- 
ards issued under the Act. Further, Respondent is assessed a civil 
Penalty of $1,000, which is suspended conditional upon his compli- 
ance with this order. 



1170 ANIMAL WELFARE ACT 

Volume 44, Number 3 



.n'r? 1 HENDERSON a "d C. L. HENDERSON, AWA Dockpf M 
349. Decided June 24, 1985. Cket No - 



Ordered to cense and desist violating the Act. 

Robert Ertman, for complainant, 
Respondent, prose. 



Decision by Edward H. McGrail, Administrative Law Judge. 

CONSENT DECISION AND ORDER 

This is a proceeding under the Animal Welfare Act a , m * * 
A comp taint issued by the Administrator of the A t 1? "Tw d 
Health Inspection Service pursuant to the Act andTtf. ' 

Rules of Practice was served upon respond?* S, 
acted dealers without being LnseTas 



^^^^^^T^ - the oo m - 
nsdiction in this matter, neither adn^t no^denv fh^ tUr6 haS JU ' 
legations of the complaint, and waive ^ear?nTanrt7T lning a1 ' 

o d fiis he o r r r, Complainant and ~*^^* 



ORDER 



violating the 

rd. issued under the Act Further eh regU ' ations ^ stand- 
civil penalty of $1,000, which is^ '' each , ^"^ent is assessed a 
compliance with this ordeT sus P^ded conditional upon his 



-j^. CON SENTDECrSION 



J. R. SHRADER, JR. im 

Volume 44, Number 3 

the Act and the regulations issued thereunder (9 CFR 201 1 et 
seq.). This decision is entered pursuant to the consent decision pro- 
visions of the Rules of Practice applicable to this proceeding (7 CFR 



admits the jurisdictional allegations in para- 
graph 1 of the complaint and specifically admits that the Secretary 
has jurisdiction in this matter, neither admits nor denies the re- 
maining allegations, waives oral hearing and further procedure 
and consents and agrees, for the purpose of settling this proceeding 
and for such purpose only, to the entry of this decision. 
The complainant agrees to the entry of this decision. 

FINDINGS OF FACT 

1. J.R. Shrader, Jr., doing business as Shrader Cattle Co., herein- 
after referred to as respondent Shrader, is an individual whose 
business mailing address is 31107 Bent Drive, Loveland, Colorado 

olMo I . 

2. Respondent Shrader is, and at all times material herein was- 

(a) Engaged in the business of buying and selling livestock in 
commerce for his own account; and 

(b) Registered with the Secretary of Agriculture as a dealer to 
buy and sell livestock in commerce. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and the 
parties having agreed to the entry of this decision, such decision 
will be entered. 



ORDER 



Respondent Shrader, his agents and employees, directly or indi- 
rectly through any corporate or other device, shall cease and desist 
from: 

1. Engaging in any act, practice or course of business for the 
purpose of obtaining money from the purchasers of livestock by 
false or deceptive pretenses, or which operates or would operate as 
a fraud or deceit upon any person in connection with the purchase 
or sale of livestock; 

^ 2. Misrepresenting to the purchasers of livestock, or aiding and 
assisting any person to misrepresent to the purchasers of livestock 
the original purchase weights of such livestock; 

S. Preparing and issuing, or causing to be prepared and issued, 
in connection with the purchase or sale of livestock, invoices, bil- 
lings, scale tickets, weight sheets or any other document showing 



ANIMAL WELFARE ACT 
Volume 44, Number 3 

false, inaccurate or misleading weight entries for such livestock; 
and 

4. Collecting payment from the purchasers of livestock, or 
aiding and assisting any person to collect from the purchasers of 
livestock, on the basis of false, inaccurate or misleading invoices, 
billings or accountings. 

Respondent Shrader shall keep and maintain accounts, records 
and memoranda which fully and correctly disclose the true nature 
of all transactions involved in his business subject to the Packers 
and Stockyards Act, including (1) copies of all sales invoices issued 
to customers; (2) a check register showing the amount, date and 
payee for each check issued; and (3) a ledger showing the number 
of head, purchase weight and price, purchase date and source for 
all livestock purchased and the number of head, sales weight and 
price, sales date and buyer for all livestock sold. 

Respondent Shrader is suspended as a registrant under the Act 
for a period of ninety (90) days. 

In accordance with section 312(b) of the Act (7 U.S.C. 213(b)), re- 
spondent Shrader is assessed a civil penalty in the amount of 
twenty-five thousand dollars ($25,000.00). 

The provisions of this Order shall become effective on May 1, 
1985. 



PACKERS AND STOCKYARDS ACT, 1921 1173 

Volume 44, Number 3 

DISCIPLINARY DECISIONS 

In re: VERSCHOOR MEATS, INC. and MICHAEL T, VERSCHOOH, P&S 
Docket No. 6524. Decided May 13, 1985. 

Purchasing livestock while insolvent; failing to pay when due. 

Steven Luparello, for complainant. 
Respondent, pro sc. 

Decision by Edward H. McGrail, Administrative Law Judge, 

CONSENT DECISION 

This proceeding was instituted under the Packers and Stockyards 
Act (7 U.S.C. 181 et seq.) by a Complaint and Notice of Hearing 
filed by the Administrator, Packers and Stockyards Administra- 
tion, United States Department of Agriculture, alleging that the 
corporate respondent's financial condition does not meet the re- 
quirements of the Act and that the respondents wilfully violated 
the Act. This decision is entered pursuant to the consent decision 
provisions of the Rules of Practice applicable to this proceeding (7 
CFR 1.138). 

The respondents admit the jurisdictional allegations in para- 
graph I of the complaint and specifically admit that the Secretary 
has jurisdiction in this matter, neither admit nor deny the remain- 
ing allegations, waive oral hearing and further procedure, and con- 
sent and agree, for the purpose of settling this proceeding and for 
such purpose only, to the entry of this decision. 

The complainant agrees to the entry of this decision. 

FINDINGS OF FACT 

1. Verschoor Meats, Inc., hereinafter referred to as the corporate 
respondent, is a corporation organized and existing under the laws 
of the State of Iowa, with its principal place of business in Sioux 
City, Iowa. The corporate respondent's business mailing address is 
1401 Bluff Road, P.O. Box 2354, Sioux City, lowas 51107. 

2. The corporate respondent is, and at all times herein was: 

a) Engaged in the business of buying livestock in commerce for 
the purpose of slaughter and manufacturing or preparing meats or 
meat food products for sale and shipment in commerce; and 

b) A packer within the meaning and subject to the provisions 
of the Act. 

3. Michael T. Verschoor, hereinafter referred to as the individual 
respondent, is an individual whose business mailing address is 1401 
Bluff Road, P.O. Box 2354, Sioux City, Iowa 51107. 



QMUUK.YAKUS ACT, 1921 
Volume 44, Number 3 



was: 



4. The individual respondent is, and at all times material herein 



a) President and Secretary of the corporate respondent- 
fa) Owner of 100% of the outstanding stock of the corporate re- 
spondent; and 

c) Responsible for the direction, management and control of 
the corporate respondent. 

CONCLUSIONS 

The respondents having admitted the jurisdictions! facts and the 
parties having agreed to the entry of this decision, such decision 
will be entered. 

ORDER 

Respondent Verschoor Meats, Inc., its officers, directors, agents 
employees, successors and assigns, and respondent Michael T Vers' 
choor, directly or through any corporate or other device, in connec- 
tion with their operations subject tothe Packers and Stockyards 
Act, shall cease and desist from: 

1. Purchasing livestock while insolvent, that is, while their cur- 
rent liabilities exceed their current assets, unless the respondents 
pay the full purchase price of the livestock at the time of purchase 
in cash, by certified check, or by wire transfer of funds to the sell- 
er s account; and 

2. Failing to pay, when due, the full purchase price of live- 

StOCR, 

In accordance with section 203fb) of the Act (7 U S C 198fb)) re 
spondents are assessed jointly and severally a civil penalty in 'the 
amount of One Thousand Five Hundred Dollars ($1 500 00) 

Tins order shall have the same force and effect as if entered 

% / anng Snd ShaU be 6ffective on the firrt day after serv 
ice of this decision upon the respondents 



ARTHUR JACKSON, JR. 1175 

Volume 44, Number 3 

In re: ARTHUR JACKSON, JR., P&S Docket No. 6509. Decided May 14, 
1985. 

Cease and desist business without bonding; registration suspended. 

Barbara Harris, for complainant, 
Respondent, pro se. 

Decision by William J. Weber, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Packers and Stockyards 
Act (7 U.S.C. 181 et set?.) by a complaint filed by the Administra- 
tor, Packers and Stockyards Administration, United States Depart- 
ment of Agriculture, alleging that the respondent wilfully violated 
the Act and the regulations issued thereunder (9 CFR 201.1 et 
seq.). This decision is entered pursuant to the consent decision pro- 
visions of the Rules of Practice applicable to this proceeding (7 CFR 
1.138). 

The respondent admits the jurisdictional allegations in para- 
graph I of the complaint and specifically admits that the Secretary 
has jurisdiction in this matter, neither admits nor denies the re- 
maining allegations, waives oral hearing and further procedure, 
and consents and agrees, for the purpose of settling this proceeding 
and for such purpose only, to the entry of this decision. 

The complainant agrees to the entry of this decision. 

FINDINGS OF FACT 

L Arthur Jackson, Jr., hereinafter referred to as respondent 
Jackson, is an individual with a business mailing address of Route 
1, Box 218, Canyon, Texas 79015. 

2. Respondent is, and at all times material herein was: 

(a) Engaged in the business of a dealer buying and selling live- 
stock in commerce for his own account; and 

(b) Registered with the Secretary of Agriculture as a packer 
buyer for John Morrell & Co. Said registration has been inactive 
since June 9, 1982. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and the 
parties having agreed to the entry of this decision, such decision 
will be entered, 

ORDER 

Respondent Arthur Jackson, Jr., his agents and employees, di- 
rectly or through any corporate or other device, shall cease and 



l!"li PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

desist from engaging in business in any capacity for which bonding 
is required under the Packers and Stockyards Act, as amended am 
supplemented, and the regulations, without filing and maintaining 
a reasonable bond or its equivalent, as required by the Act and tht 
regulations. 

Respondent is suspended as a registrant under the Act until sucr 
time as he complies fully with the bonding requirements under the 
Act and the regulations. When respondent demonstrates that he if 
m till compliance with such bonding requirements, a supplemental 
order will be issued in this proceeding terminating this suspension 

In accordance with section 312(bJ of the Act (7 USC 218 (b)> 

lunrtnj-Jsint- I- 1 ii , --.u. ( uj.u \tJfl- 

civil penalty m the 



.- become effective 

of this order on the respondent. 



to 
rk . ,, . 



' - " /,, 



I'OXSKNTMCISION 



Oil, -t>. f.'flVnerul Counsel Ifq n 

"unsti, U.S. Department 

--.','',; J'AI I (.(>, 1,,,, r , 

Mr IU v And M forlheB espondent? 



rtt* 1 Fo " the Respondent: 

" that anybody 



ARNOLD YOUNG CATTLE COMPANY, INC. 1177 

Volume 44, Number 3 

Mr. Vail, it's for you now to tell us exactly what the decree is 
that you have agreed to. 

Mr. VAIL: Thank you, Your Honor. 

I will first read into the record the findings of facts that have 
been agreed to, and, I will read them in in numbered paragraphs. 
Number 1. Arnold Young Cattle Company, Inc. hereinafter re- 
ferred to as the Corporate Respondent, is a corporation with its 
principal place of business located in Groesbeck, (spelling) G-r-o-e-s- 
b-e-c-k, Texas; its business mailing address is P.O. Box 439 Highway 
14 South, Groesbeck, Texas 76642. 

Number 2. The Corporate Respondent, at all time material 
herein, was (a.) Engaged in the business of buying and selling live- 
stock in Commerce for its own account, and, buying and selling 
livestock as the agent or the vendor for the purchaser. 

And (b.) Registered with the Secretary of Agriculture as a dealer 
to buy and sell livestock in Commerce. 

Number 8. Arnold Young, hereinafter referred to as the Individ- 
ual Respondent, 5s an individual whose business mailing address is 
108 Meadow Lane, Groesbeck, Texas 76642. 

Number 4. The Individual Respondent is, and at all times materi- 
al herein was, the sole owner and the president of the Corporate 
Respondent and managed and directed and controlled the livestock 
business operation of the Corporate Respondent, 

Number 5. The Individual Respondent, at all times material 
herein, was registered with the Secretary of Agriculture as a dealer 
to buy and sell livestock in commerce. 

The order that has been agreed to is as follows, The Respondent 
Arnold Young Cattle Company, Inc., its officers, directors, agents 
and employees and Respondent Arnold Young, individually or as 
an officer or an agent or an employee of Respondent Arnold Young 
Cattle Company, Inc., directly or through any corporate or other 
device in connection with their business operations subject to the 
Standards For Stockyards Act, shall cease and desist from (1.) Issu- 
ing checks in payment for livestock without having and maintain- 
ing sufficient funds on deposit and available in the bank account 
oai which such checks are drawn to pay such checks when present- 
ed. 

(2.) Failing to pay when due the full purchase price of live- 
stock, 

(3.) Accepting money in connection with the purchase of live- 
stock and failing to deliver such livestock. 

(4.) Entering into any agreement with any person to purchase 
livestock on a commission, agency or dealer basis for such person, 



1 !~* PACKERS AND STOCKYARDS ACT, 1021 

Volume 44, Number 3 

without complying in every respect with the terms and conditions 
of such agreement. 

It is further ordered that Respondent Arnold Young Cattle Com- 
pany, Inc., its officers, directors and agents and employees and the 
Respondent Arnold Young, individually or as an officer or an agent 
or an employee of Arnold Young Cattle Company, Inc., directly or 
through any corporate or other device in connection with their 
business operations, subject to the Packers and Stockyards Act 
shall, in connection with any agreement to purchase livestock on n 
commission agency or dealer agency, whereby the Respondent 
agree, , to arrange for the placement of such livestock in a feed lot, 

^rill a ^ a L del . 1Ve 7 f ?** < to the purchaser for 

)ndent shall exercise reason- 
_ of such livestock until deliv- 
and, upon request from such purchaser shall 
them a written account of the then current condi- 
mcluding the number of head and actual lo- 

ivtoiUCK and a nPSPrinfinvi r\f .-.11 _ i 

i_ r "-*'* ipt/iuii ui an expenses FITI-CI 



ger f 



and 



, al ti H 

worth. mll ' tles and mcome Censes and not 

<y and Itt r r 1PtS a " d disb ts journal, posted regulai , 



. '-took options 

And ,1. Purchase invoke o*T* f ^ aCCOUllts - 

' of sales in- 



ake a full rest ut P-mant Arnold Young 

unpaid livestock 



* and 

a <*"! of two and a hal e '' S and 



FEIDER & KUEFFNER d/b/a PREMIUM PACKING 1179 

Volume 44, Number 3 

he event full restitution is not made on or prior to No- 
1985, the suspension of Respondent shall be extended 
two and a half years' period of suspension by a period 
essary to complete restitution. 

e and desist and the recordkeeping provisions of this 
become effective on the sixth day after the entry of this 
suspension provisions of this order shall become effec- 
ember 16, 1985. 

-Honor, as an addendum to the order there is one addi- 
sion, which is as follows. 

ent that the Respondent is unable to determine on or 
tmber 15, 1985, and after reasonable efforts, the proper 
rties to make restitution to, the Respondent's demon- 

11S ioQ? t0 make Such restitutio " on or before No- 

i, 1985 shall be deemed compliance with this provision 
sit that, after November 15th, 1985, either party to this 
nines the proper party or parties to whom restitution 
ide, said restitution shall be made promptly to such 
ties. 

-MER: Does the Respondent wish to add anything? 

:AN: No, sir. 

our agreement. 

Yes. 

.MER: And accordingly, it is so ordered this 23rd day of 

>. And that concludes the hearing. 

L. 

roceedings.) 



NY J. FEIDER, JR. and VINCENT KUEFFNER, d/b/a PRE- 
U3KWG, P&S Docket No. 6426. Decided May 17, 1985. 

it from engaging In business without bonding; issuing checks for 
1 sufficient funds; failing to pay when dueCivil Penalty. 

nhreber, for complainant. 

Uos, Wauwatosa, WI, for Kuoffner. 

iflpondent, pro se. 

Dorothea A, Baker, Administrative Law Judge. 
CONSENT DECISION 

ding was instituted under the Packers and Stockyards 
181 et seq.) by a complaint filed by the Administra- 
md Stockyards Administration, United States Depart- 



PACKERS AND STOCKYARDS ACT, 1923 
Volume 44, Number 3 



,hl 5 T2 ' f lleglng that the res Pndents wilfully violated 
the Act and the regulations promulgated thereunder. This decision 
entered pursuant to the consent decision provisions of the R los 
of Practice applicable to this proceeding (7 CFR TlSS) 

^rllh t n !?f P ?l! de n tS a , dmit the J uHsdi ctional allegations in pnra- 
at ha fhp S? P amt v nd N tiCe f Hearing and Pecific tl Jly 

The complainant agrees to the entry of this decision. 

FINDINGS OF FACT 

1. Anthony J. Feider, Jr., and Vincent !?, 
doing business as Premium P a T u Kueffner, a partners 
"ixmdentt. have their princin^;T/? er . referred to 



subject to the prov 
-ua, purehases 



admits 



ORDER 

* 




RICHARD HALE ngl 

Volume 44, Number 3 

Jhich such checks are drawn to pay such checks when 
ing to pay, when due, the full purchase price of live- 

ST * J r,V y and SeVeran * a civil Penally in 
Hundred Dollars ($500.00) 

vuf H thlS - rder b L eC meS 6ffective on the f*st day 
this decision on the respondents. 



HD HALE, P&S Docket No. 6219. Decided May 24, 1985. 
from engaging in business activities without bonding-Civil Pen- 



m, 

complainant. 

1 se. 



Dorothea A. Baker, Administrative Law Judge. 
CONSENT DECISION 

'ding waa instituted under the Packers and Stockyards 
fr 181 et seq,} , by ^a complaint filed by the Administra- 
and Stockyards Administration, United States Depart- 
culture, alleging that the respondent wilfully violated 
the regulations issued thereunder (9 CFR 201 1 et 
asion is entered pursuant to the consent decision pro- 
Kules of Practice applicable to this proceeding (7 CFR 

dent admits the jurisdiction^ allegations in para- 
i complaint and specifically admits that the Secretary 
>n in this matter, neither admits nor denies the re- 
lations, waives oral hearing and further procedure 
and agrees for the purpose of settling this proceeding 
turpose only, to the entry of this decision. 
mant agrees to the entry of this decision. 



FINDINGS OF FACT 



lale, hereinafter referred to as the respondent, is an 
ose mailing address is Route 2, Kimberly, Idaho 

it is, and at all times material herein was: 

id in the business of buying and selling livestock in 

us own account; 



1182 



PACKERS AND STOCKYARDS ACT, 1921 
Volume 44. Number 3 



f bUy ' mg livesto <* in commerce on 



a commission basTs; an 

f^ as a dealer to 

agency to buy liveS fn ' ^ Wn aCCOUnt ' and as * 

bas 's- V6StOCk ln Commerce on a commission 



The respondent havintr 
Parties having agreed to 
will be entered. 



CONCLUSIONS 



** and the 
l decision, such decision 



ORDER 



and Stockyards Act shall 
' busmass in any capacity for wh c h 
Packers and Stockyards Act, J 
the regulations, without filing and 

" eq T le t. as required" 

Respondent is suspended 
me as he ^^ t 

Act and the regulations. When respond ?"* 
m full compliance with such 
order will be issued in 

In accordance with section 
spondent is assessed a d^ 
dree Rfly Dollare ($7Eao()) Py in the 

ihe provisions of this order shli 
day after service of this order'onthe 



corporate 

SUbject to " 
fr m ^ging 
re( i uir ^ under thi 
a " d ^PP^mented, and 

3 reasonable " 
re gulations. 
the Act ^ 

^"'rements under the 
demo "strates that he is 

a "-pplenCte" 
this s Pension 
US ' C - 213(b)), ^ 
amount of Seven H un . 



" 



: EDDY E - COLE, P&s Docket No 
< ,, enai Na 



< e 
on-c,v,,p wall , 



May 31 , 1985 . 
: 



. 

M ^ive La w j udge 



1184 PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

strates that he is in full compliance with such bonding require- 
ments, a supplemental order will be issued in this proceeding ter- 
minating this suspension. 

In accordance with section 312(b) of the Act (7 U.S.C. 213(b)), re- 
spondent is assessed a civil penalty of Four Hundred Dollars 
($400.00). 

The provisions of this order shall become effective on the sixth 
day after service of this order on the respondent. 



In re: CORDELE LIVESTOCK COMPANY, INC. and ROGER BLANCIIARD, 
P&S Docket No. 6522. Decided May 31, 1985. 

Cease and desist failing to deposit in Custodial Account for shippers within lime 
prescribed; misuse of funds received as proceeds from sales; falling to mufnliUn 
Lustodial Account for shippers proceeds-Civil Penalty-Suspension. 

Roberta Swatendreder, for complainant. 
Respondent, pro se. 

Decision by Edward H, McGrail, Administrative Law Judge. 

CONSENT DECISION 

A T h ,7 t P i r 2 eding WaS instituted under the Packers and Stockyards 
Act (I U,b.C. 181 et seq.) by a complaint filed by the Administra- 
tor, Packers and Stockyards Administration, United States Depart- 
ment , of Agriculture, alleging that the respondents wilfully violated 
me Act and the regulations issued thereunder (9 CFR 201 1 et 
seq.). Ihis decision is entered pursuant to the consent decision pro- 
visions of the Rules of Practice applicable to this proceeding (7 CFR 

S l.J-do). 



,rl h h 6 T reS f P ndentS , admlt the J^fcttaial allegations in para- 
graph I of the complaint and specifically admit that the Secretary 
has jurisdiction m thus matter, neither admit nor deny the remain^ 
mg allegations, waive oral hearing and further procedure, and con- 
sent and agree for the purpose of settling this proceeding and for 
such purpose only, to the entry of this decision 
The complainant agrees to the entry of this decision. 



FINDINGS OF FACT 



1. Cordele Livestock Company, Inc., hereinafter referred to as th* 
corporate respondent, is a closely-held family owned 
with its principal place of business located at 



r 

corporate respondent's business mailing address isP Box 
Cordele, Georgia 31015. x 



CORDELE LIVESTOCK AND ROGER DLANCHARD HHfi 

Volume <14, Number^ 

2. The corporate respondent is, and at all times material herein 



was: 



(a) Engaged in tho business of conducting and operating tho 
Cordele Livestock Company, Inc., stockyard, a stockyard posted 
under and subject to the provisions of the Act, heremnltor roiorred 
to as the stockyard; 

(b) Engaged in the business of selling livestock on a commm- 

sion basis nt the stockyard; and 

(c) Registered with the Secretary of Agriculture as a market 
agency to sell livestock on a commission basin in commerce. 

8. Roger Blunchard, hereinafter referred to tm tho individual re- 
spondent, is an individual whose business mailing addrosH IH P. O. 
Box 1H9, Cordele, Georgia HlOlfi. 

4. The individual respondent in, and at nil times material heroin 

was; 

(a) Vice-ProHident and manager of the corporate roHpomkmt; 

(b) The individual responsible for tho direction, manngomont 
and control of tho corporate respondent; and 

(c) Engaged in the buHinoHH of selling livestock on u commission 
basis at the stockyard, 



1186 PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 



Company ' Inc - is 

until such time as it d * \ "'"^ f " days and thereaft 
dial Accoun fc ShLe' P!^ ^ ?" def ' cien ^ in its Custo 

spondent Cordele L ve s to ck 00^ r 'T, eliminated ' When r ^ 
deficiency in its Cu,S A Compan y' Inc - demonstrates that the 

eliminated a ulml 01 " 1 ' Sh!pPerS ' Pr0ceeds has 



terminating thesuspen n a, . 

period. artei the expiration of the 14-day 



market agency, buying or el ^ 1 ' 3 ^, 811 ^' 4 the Act as 
mission basis or Cnishinf f t ""^ comm ' on a com- 
buying or selling 1 vesto ck "n *"* Se CeS ' or as a dealer ' 
or as the employee or at of Th^T ""^ n his ow " accounl 

In accordance with secfaon 3m, T f t r f PUrChaSer ' 
spondent Roger Blanch" s ~6 ** ^ " ^ 213tb ' "" 
of Five Thousand Dollars ($5 00 00) Pena " y in the amOUnt 



Docket 

issui " 8 ta 



Steven Luparello, for complainant 

' Myrick ' Mobi]e . AL, for respondent, 

Decision by William r u/ t A , . 

y muiam J. Weber, Administrative Law Judge. 

CONSENT DECISION 



y t ,, 






W. M. BROWN d/b/a W. M. BROWN CATTLE CO. 1187 

Volume 44, Number 3 

and consents and agrees, for the purpose of settling this proceeding 
and for such purpose only, to the entry of this decison. 

FINDINGS OF FACT 

1. W.M. Brown, doing business as W.M. Brown Cattle Co., herein- 
after referred to as the respondent, is an individual whose business 
mailing address is Route 3, Box 249, Atmore, Alabama 36502. 

2. The respondent is, and at all times material herein was: 

a) Engaged in the business of buying livestock in commerce on 
a commission basis, and buying and selling livestock in commerce 
for his own account; and 

b) Registered with the Secretary of Agriculture as a dealer to 
buy and sell livestock in commerce for his own account, and as a 
market agency to buy livestock on a commission basis in com- 
merce. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and the 
parties having agreed to the entry of this decision, such 
will be entered. 



PACKERS AND STOCKYARDS ACT, 1921 
Volume 44, Number 3 



The provisions of this order shal] become effective upon 
tare of this decision by the Administrative Law Judge. 



In BONNIE STIDHAM, P&S Docket No. 6506. Decided J im ,, tf, 






>erta Su-arizendruber. for complainant. 
Respondent, pro se. 



CONSENT DECISION 

und the 



tor, Packers a Sto kyrds 

ment of Agriculture, afle th a the 

the Act and the regulatSnf ? ' *e r espondent wilfuj] yio[ 

^.'. This decision re^^ CFR 2<)1 '' '" 



un 

visions of the Rules of PracUce annh,l, t fu 00 " 86 "* dedsio]1 P''- 
1.138). i->actice applicable to this proceeding (7 CFR 



. allegatio - s in - 

as jurisdiction in this matter h " y a , dmitS tha * the Seeret <"-.V 
"-aining allegations, waes oral h Pfl ' "^ de " ies the >^ 

nd consents and agrees to, the 1 g and further Pmceduro 

-d for such purpos" on *i y t 'o the entrv^f I 86 """ 6 thi " Pceod 



NGS OF PACT 



, 

65622. g address as P, Q. Box 10 jj uf 



JERRY RODARMEL d/b/a MESA PACKING & PROCESSING 1189 

Volume 44, Number 3 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and the 
parties having agreed to the entry of this decision, such decision 
will be entered, 

ORDER 

Respondent Donnie Stidham, his agents and employees, directly 
or through any corporate or other device, shall cease and desist 
from engaging in business in any capacity for which bonding is re- 
quired under the Packers and Stockyards Act, as amended and sup- 
plemented, and the regulations, without filing and maintaining a 
reasonable bond or its equivalent, as required by the Act and the 
regulations. 

Respondent is suspended as a registrant under the Act until such 
time as he complies fully with the bonding requirements under the 
Act and the regulations. When respondent demonstrates that he is 
in full compliance with such bonding requirements, a supplemental 
order will be issued in this proceeding terminating this suspension 

In accordance with section 312(b) of the Act (7 U.S.C. 213(b)), re- 
spondent is assessed a civil penalty in the amount of Six Hundred 
Dollars ($600.00) 

The provisions of this order shall become effective on the sixth 
day after service of this order on the respondent. 



In re; JERRY E. RODARMEL d/b/a MESA PACKING AND PROCESSING 
Co., P&S Docket No. 6431, Decided June 6, 1985. 

Issuing Insufficient funds check; failure to pay when due; failing to pay full price- 
failure to hold funds in trust. 

Eric Paul, for complainant, 

Jerry E. Rodarmel, Pueblo, CO, for respondent. 

Decision by Victor W. Palmer, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Packers and Stockyards 
Act (7 U.S.C. 181 et seq.) by a complaint filed by the Administra- 
tor, Packers and Stockyards Administration, United States Depart- 
ment of Agriculture, alleging that the respondent wilfully violated 
the Act and the regulations issued thereunder (9 CPR 201.1 et 
seq,). This decision is entered pursuant to the consent decision pro- 
visions of the Rules of Practice applicable to this proceeding (7 CFR 
1.138). 



1190 PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

The respondent admits th ' A- 

graph I of the complaint and weSlv ^ * ll * Satio in P ara ' 
nas jurisdiction in th' <-<- . dl v o.rmts that the Secretary 

maining allegations, waives 0?^^ SdmitB n r denies the re * 
and consents and ae-i-PP^ fn>- *u nearin ^ and further procedure, 

j f . "gtetJii, I0r the Dlirnnca ~f *4.i'._. ,i - .. ' 



FINDINGS OF PACT 

r^ '^ t0 aS the 

., also known as the M eS a Pai "p 63 Packing and P-'ooessi 
cated at 312 Baxter Road Puehln r f ," ^ S Ie P r P ri etorship lo- 

^XSj?,S-?r* f= - 

for the purpose of slaughter ^ livestock in commerce 



- the 

P-hases of Hvestock exceed 

CONCLUSIONS 

The respondent having admits t^ - - ,- 

Parties having agreed to" t^^ S?*^* fact * and the 
will be entered. try of thls deosion, such decision 

ORDER 



ovi 

operatHMa subject to the Packers Tanrf q l'" C nnecti " with his 
and desist from: e ' S and St kyards Act, shall cease 

1. Issuing checks in 
maintaining sufficient 

- 5- ... 



JOEL VAN LITH 1191 

Volume 44, Number 3 

In accordance with section 203(b) of the Act (7 U.S.C. 193(b)), re- 
spondent Jerry E. Rodarmel is assessed a civil penalty in the 
amount of Five Hundred Dollars ($500.00). 



In re: JOEL VAN LITH, P&S Docket No. 6501. Decided June 7, 1985. 

Engaging in business without bonding; suspended registration-Civil Penalty- 



Joty Hochberg, for complainant. 
Respondent, pro se. 

Decision by Victor W. Palmer, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Packers and Stockyards 
Act (7 U.S.C. 181 et seq.) by a complaint filed by the Administra- 
tor, Packers and Stockyards Administration, United States Depart- 
ment of Agriculture, alleging that the respondent wilfully violated 
the Act and the regulations issued thereunder (9 CFR 201 1 et 
seq.). This decision is entered pursuant to the consent decision pro- 
visions of the Rules of Practice applicable to this proceeding (7 CFR 
1.138). 

The respondent admits the jurisdictional allegations in para- 
graph I of the complaint and specifically admits that the Secretary 
has jurisdiction in this matter, neither admits nor denies the re- 
maining allegations, waives oral hearing and further procedure 
and consents and agrees, for the purpose of settling this proceeding 
and for such purpose only, to the entry of this decision. 

The complainant agrees to the entry of this decision. 

FINDINGS OF FACT 

1. Joel Van Lith, doing business as V.L. Livestock, hereinafter re- 
ferred to as the respondent, is an individual whose business mail- 
ing address is 2204 South Iowa, Caldwell, Idaho 83605. 

2. Respondent is, and at all times material herein was; 

(a) Engaged in the business of buying and selling livestock in 
commerce for his own account; and 

(b) Registered with the Secretary of Agriculture as a dealer to 
buy and sell livestock in commerce for his own account, and as a 
market agency to buy livestock in commerce on a commission 
basis. 



1192 



PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 



CONCLUSIONS 



and the 

be entered. " " "" """ CIJIJy or this decision, such decision 

ORDER 

Respondent Joel Van Lith hk 

through any corporate or other d' ^ employees ' directly or 
^gaging in business in any canad^Ix u" ?? e &nd desist from 
under the Packers and Stock Vfl ^ A lch bonding is required 

men ted, and the reeulnno ,,^ .,?.' as Amended and 



h~ts tSr und - the A - - -> 

Ac and the regulations When resDonH ? ^"""""tB under the 

'"full compliance with suchbondW rf dem nstrate = *at ho b 

order will be issued in this proceedin. 7 " m nt *' a ^PPlementol 

In accordance with section 8 T 2( b) of ^T'?^^ S s ^^'n. 

* - ^ "-^nSS 






A/. ea Whington DP r 

gTon ' uc ' for respondent 



CONSENT DECISION 



ssss-H-S 



FDL FOODS, INC. AND DUBUQUE PACKING COMPANY 11M 

Volume 44, Number 3 

of the Rules of Practice applicable to this proceeding (7 CFR 

in this matter, neither admit, rZ j "^ haS J urisdi <=tin 

' 



, , r 

tions, waives oral hearing and furtL' T ^ ^^ alle a ~ 
agrees, for the purpose o? se ttlirT^ P1 Ced , U . re ' and con =ts and 
Pose on.y, to < cVStt Pr Ceedlng ^ f r S ^ ^~ 
The complainant agrees to the entry of this decision. 

FINDINGS OF FACT 

2 Respondent FDL is, and at all times material 



was' 

liVeSt Ck 
meat food 



tne prov- 



CONCLUSIONS 
OUDEK 



-- 
or- employee of a customer, or prospective "customer, ta 



1194 



PACKERS AND STOCKYARDS ACT, 1921 
Volume 44, Number 3 



chandising service payments i^ br kera ^ e commission or mei 
bution of mea t, meatZd Pr du'r!: 1 W ' th the *> d dbtri 
any person unless such person a , t n' n'^ r P ultry products 
chandising services. Ua " y rendered brokerage or mar- 

Respondent FDL Foods Inn ,h 11 

and memoranda sufficient to folly dldnT^ ^ ""f'"' 3 '" reCOrtls 
age commission or merchandising the details of a broker- 

and gratuities of more thin 2?*, Payme " ts and rf ^ * 
FDL in connection w h the sT 1 ? Ue gfven by Despondent 
food products, poultry paltry D Z * S ' ributi of -eat, meat 
ed to, the following: V Pr ducts Deluding, but not limit- 

^~-ec ip ient 



1 ^e1ur2V[ ---% Deluding its value; and 
In accordance with section 2^,' g !" r fatuity. 

assaa=ss?'"--a;a:ffisa 



- . . _ 



rara . for complainant. 
Kespondent./jrosp. 

Decision by Victor w D / 

-v W. Pal mer , Administrative Lawjud ^ 

CONSENT DECISION 



ARNOLD YOUNG AND ARNOLD YOUNG CATTLE CO, 1195 

Volume 44, Number 3 



CFH U38) f the RUl6S f PraCtiCe applicaWe to this Proceeding (7 

JiS? /Tr 01 18 , admit the J urisdicti *l allegations in para- 
giaph I of the complaint and specifically admit that the Secretary 
has J u nsd , ctlon m thls matter> ne;ther adm . t nm . y 

mg allegations, waive oral hearing and further procedure, and con- 
sent and agree for the purpose of settling this proceeding and for 
such purpose only, to the entry of this decision. 

FINDINGS OF FACT 

iL Al T ld YOI T CatUe Com P a "y. Inc., herein referred to as the 
corporate respondent, is a corporation with its principal place of 
busmess located at Groesbeck, Texas. Its business ma ing "add es 
, ~ B X m ' Hwy ' U South - Groesbeck, Texas 76642 










CONCLUSIONS 



ORDEK 



J ] '" ; PACKERS AND STOCKYARDS ACT, 1 921 

Volume 44, Number 3 

1. Issuing checks in payment for livestock without having and 
maintaining sufficient funds on deposit and available in the bank 
account upon which such checks are drawn to pay such checks 
when presented; 

'2. Failing to pay, when due, the full purchase price of live- 
stock; 

-'!. Accepting money in connection with the purchase of live- 
stock and failing to deliver such livestock; and 

-I Entering into an agreement with any person to purchase 
Untuck on a commission, agency, or dealer basis for such person 
vuthout compjymg m every respect with the terms and conditions 



, ,l rr f respondent Am W Young Cattle Com- 

' "" 



ve- 

a e 

erv ,o , uc 

promp uv h'hta P n tf reqUSSt fr m SUCh 

- 



of such ge " Umber f he cl 

- e, 



correctly disclose l . nd 






and 



JOHN CHRIS ROSSO AND HODGE KENT PERKINS 11B7 

Volume 44, Number 3 

other documents necessary to show the true nature of all of ro 
spondents' livestock purchase and sales transactions 
On or before November 15, 1985, respondent Arnold Young shall 



shau 



In the event that respondent Arnold Young is unable to dPt-p, 
mme. on or before November 15, 1985, and after reasonabl effort 
the proper party or parties to make restitution tn e *ta ( 

demotion of his readiness to maketch t it oT 
deemed comphance. In the event that after November 15 
either party to this order determines the proper par y or rl 
^restitution shall be made, said itLTS^ 

Respondents Arnold Young Cattle Company, Inc and 
Young are suspended as registrants under the P t S t e'rs 



sary to complete restitution 



o n 



KENT p p&s 

Engaging in business without bondlngwConsont. 

Roberta Swartzendrubcr, for coraplainnnt. 

Hespondent, prose, 

Decision by Dorothea A. Bake,; A dmi n istrative Law Judge . 

CONSKNT DECISION 



Act and the re f e f . r88 PJent a wilfully violated 



1198 PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

visions of the Rules of Practice applicable to this proceeding (7 CFR 
1.138). 

The respondents admit the jurisdictional allegations in para- 
graph I of the complaint and specifically admit that the Secretary 
has jurisdiction in this matter, neither admit nor deny the remain- 
ing allegations, waive oral hearing and further procedure, and con- 
sent and agree, for the purpose of settling this proceeding and foi 
such purpose only, to the entry of this decision. 

The complainant agrees to the entry of this decision. 

FINDINGS OP FACT 

1. Respondent John Chris Rosso, hereinafter referred to as re 
spondent Rosso, is, and at all times material herein was: 

(a) Engaged in the business of conducting and operating th< 
Stigler Sale Barn stockyard, a posted stockyard under the Act; 

(b) Engaged in the business of selling livestock on a commis 
sion basis at the Stigler Sale Barn stockyard; and 

(c) Registered with the Secretary of Agriculture as a dealer t< 
buy and sell livestock in commerce for his own account, and as i 
market agency to sell livestock in commerce on a commission basis 

2. Respondent Rosso and Hodge Kent Perkins, hereinafter re 
ferred to as respondent Perkins, are partners doing business at 
Scott County Livestock Auction, Inc., with a business mailing ad- 
dress of P. O. Box 809, Waldron, Arkansas 72958. 

3. Respondents are, and at all times material herein were: 

(a) Engaged in the business of conducting and operating the 
Scott County Livestock Auction, Inc., stockyard, a posted stockyard 
under the Act, hereinafter referred to as the stockyard; 

(b) Engaged in the business of selling livestock on a commis- 
sion basis at the stockyard; and 

(c) Not registered with the Secretary of Agriculture. 

CONCLUSIONS 

The respondents having admitted the jurisdictional facts and the 
parties having agreed to the entry of this decision, such decision 
will be entered. 

ORDEK 

Respondents John Chris Rosso and Hodge Kent Perkins, their 
agents and employees, directly or through any corporate or other 
device, shall cease and desist from engaging in business in any ca- 
pacity for which bonding is required under the Packers and Stock- 
yards Act, as amended and supplemented, and the regulations, 



RICKEY BOBO 1199 

Volume 44, Number 3 

without filing and maintaining a reasonable bond or its equivalent 
as required by the Act and the regulations. 

Insofar as respondents are now in full compliance with the bond- 
ing requirements under the Act and the regulations, no suspension 
or prohibition is warranted. 

In accordance with section 312(b) of the Act (7 U.S.C. 2i3(b}) re- 
spondents are jointly and severally assessed a civil penalty of Two 
Thousand Dollars ($2,000.00). 



In re; RICKEY BOBO, P&S Docket No. 6507. Decided June 17, 1985. 

Issuing insufficient funds checks; failure to pay when due; registration suspend- 
cd Consent. 

Jory Hochberg, for complainant. 
Respondent, pro se. 

Decision by William J> Weber, Administrative Law Judge, 

CONSENT DECISION 

This proceeding was instituted under the Packers and Stockyards 
Act (7 U.S.C. 181 et seq.) by a complaint filed by the Administra- 
tor, Packers and Stockyards Administration, United States Depart- 
ment of Agriculture, alleging that the respondent wilfully violated 
the Act. This decision is entered pursuant to the consent decision 
provisions of the Rules of Practice applicable to this proceeding (7 
CFR 1.138). B 

The respondent admits the jurisdictional allegations in para- 
graph I of the complaint and specifically admits that the Secretary 
has jurisdiction in this matter, neither admits nor denies the re- 
maining allegations, waives oral hearing and further procedure, 
and consents and agrees, for the purpose of settling this proceeding 
and for such purpose only, to the entry of this decision. 

The complainant agrees to the entry of this decision. 

FINDINGS OF FACT 

1. Rickey Bobo, hereinafter referred to as the respondent, is an 
individual whose address is Route 2, Gumming, Georgia 30130. 

2. Respondent is, and at all times material herein was; 

(a) Engaged in the business of buying and selling livestock in 
commerce for his own account; and 

Cb) Registered with the Secretary of Agriculture as a dealer to 
buy and sell livestock in commerce. 



PACKERS AND STOCKYARDS ACT, 
Volume 44, Number 3 

CONCLUSIONS 

a l ing admitted the Jridictional facts and the 
be ed * the 6ntry f this decisio > h decision 



ORDER 

thfoui ! 611 ' R1Ck ^ B b 'u hiS 3gentS and employees, directly or 
through any corporate or other device, shall cease and desist from: 

maintaining '^inpayment for livestock without having and 
counfZ B I ^1 f u" dS " dep sit and availab 'e in the ac- 
presented; and ""* ^ ^ ^ t0 Pay SUch checks 
2. Failing to pay, when due, for livestock purchased. 



/i. JOHNNY HORTON, P&S Docket No. 6443. Decided June 18, 



in businras wlthoul 



Barbara Harris, for complainant. 

Daniel W, Oken. Kansas City, MO. for respondent. 

Decision by Edward H. McGrail, Administrative Law Judge. 

CONSENT DECISION 

AcM^uTcl'r T '"f K Uted UndSr the PaCkers and Stocked. 



procedure, 
proceeding 

-plainantag^^^^^rST' 



JOHNNY HORTON 1201 

Volume 44, Number 3 

FINDINGS OF FACT 

1. Johnny Horton hereinafter referred to as respondent, is an in- 
dividual whose business mailing address is P, 0. Box 36, Decatur, 

2. Respondent is, and at all times material herein was- 

Ca) Engaged in the business of buying and selling livestock in 
commerce for his own account; and 

flj) Registered with the Secretary of Agriculture as a dealer 
buying and selling livestock in commerce for his own account and 
as a market agency buying livestock in commerce on a commission 
basis. 

CONCLUSIONS 

The respondent having admitted the jurisdiction^ facts and the 
parties having agreed to the entry of this decision, such decision 
will be entered. 

ORDER 

Respondent Johnny Horton, individually or through any corpo- 
rate or other device, in connection with his activities subject to the 
Packers and Stockyards Act, shall cease and desist from engaging 
m business in any capacity for which bonding is required under the 
Packers and Stockyards Act, as amended and supplemented, and 
the regulations, without filing and maintaining a reasonable bond 
or its equivalent, as required by the Act and the regulations. 

Respondent is suspended as a registrant under the Act until such 
time as he complies fully with the bonding requirements under the 
Act and the regulations. When respondent demonstrates that he is 
in full compliance with such bonding requirements, a supplemental 
order will be issued in this proceeding terminating this suspension. 

In accordance with section 312(b) of the Act (7 U.S.C. 213(b)), re- 
spondent is assessed a civil penalty in the amount of Six Hundred 
Dollars C$600.00) 

The provisions of this order shall become effective on July 3, 

1985, 



1202 PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

In re: SALUDA COUNTY STOCK YARD, INC., P&S Docket No. 6525. De- 
cided June 18, 1985. 

Selling under false names; preparing documents showing fictitious names; re bat- 
ing Civil Penalty, Suspension Consent. 

Eric Paul, for complainant. 

Joe F, Anderson, Jr., Edgefield, SC, for respondent. 

Decision by Edward H. McGrail, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Packers and Stockyards 
Act (7 U.S.C. 181 et seq.) by a complaint filed by the Administra- 
tor, Packers and Stockyards Administration, United States Depart- 
ment of Agriculture, alleging that the respondents wilfully violated 
the Act and the regulations issued thereunder (9 CFR 201.1 et 
seq.}. This decision is entered pursuant to the consent decision pro- 
visions of the Rules of Practice applicable to this proceeding (7 CFR 
1.138). 

The respondents admit the jurisdictional allegations in para- 
graph I of the complaint and specifically admit that the Secretary 
has jurisdiction in this matter, neither admit nor deny the remain- 
ing allegations, waive oral hearing and further procedure, and con- 
sent and agree, for the purpose of settling this proceeding and for 
such purpose only, to the entry of this decision. 

The complainant agrees to the entry of this decision. 

FINDINGS OF FACT 

1. Saluda County Stock Yard, Inc., hereinafter referred to as the 
corporate respondent, is a South Carolina corporation whose princi- 
pal places of business are at Saluda, South Carolina, and at Lugoff, 
South Carolina. Its current mailing address is P.O. Box 634 
Saluda, South Carolina 29138. 

2. The corporate respondent is, and at all times material herein 
was: 

(a) Engaged in the business of conducting and operating the 
Saluda County Stock Yard, Inc., stockyard, and the Lugoff Live- 
stock Market stockyard, posted stockyards under the Act, herein- 
after referred to as the stockyards; 

^ (b) Engaged in the business of selling livestock on a commis- 
sion basis at the stockyards, buying livestock on a commission basis 
at the Saluda County Stock Yard, Inc., stockyard, and buying and 
selling livestock on a dealer basis under the name Lugoff Livestock 
Market; and 



SALUDA COUNTY STOCK YARD, INC. 1203 

Volume 44, Number 3 

(c) Registered with the Secretary of Agriculture as a market 
agency to buy and sell livestock in commerce on a commission 
basis and as a dealer to buy and sell livestock in commerce. 

A, Ra i ph J ' McClendon ' hereinafter referred to as respondent 
McClendon is, and at all times material herein was: 

(a) The Secretary of and a 20 per cent stockholder in the corpo- 
rate respondent, a closely held family corporation; 

(b) Employed as the General Manager of the corporate re- 
spondent and as the auctioneer at its stockyards; and 

(c) Responsible for the direction, management, and control of 
the operations of the corporate respondent. 

(4) Since March 7, 1984, respondent McClendon has been regis- 
tered with the Secretary of Agriculture as a dealer to buy and sell 
livestock in commerce, 

CONCLUSIONS 

The respondents having admitted the jurisdictional facts and the 
parties having agreed to the entry of this decision, such decision 
will be entered. 



ORDER 



Respondent Saluda County Stock Yard, Inc., its officers, direc- 
tors, agents, employees, successors and assigns, and respondent 
Ralph J. McClendon, individually or as an officer, director, agent 
or employee of the corporate respondent, directly or through any 
corporate or other device, in connection with their operations sub- 
ject to the Packers and Stockyards Act, shall cease and desist from: 

1. Consigning and selling livestock, or permitting the consign- 
ment and sale of livestock, under false and fictitious names; 

2. Preparing and issuing, or causing to be prepared and issued, 
in connection with the purchase or sale of livestock, accounts of 
sale, accounts of purchase, buyers invoices, sellers invoices, custodi- 
al account checks or any other document showing false, fictitious, 
incomplete, inaccurate or misleading names for the buyers, con- 
signors or sellers; 

3. Transmitting to consignors accounts of sale which do not 
show the complete and correct names of the buyers of consigned 
livestock; 

4. Purchasing livestock from consignments for speculative 
resale, either directly or indirectly through a partnership arrange- 
ment or any other device; 

5. Permitting their auctioneers, weighmaster, ringmen or other 
employees performing duties of comparable responsibility in con- 
nection with the actual conduct of auction sales, to purchase live- 



120 <1 



PACKERS AND STOCKYARDS ACT, 1921 
Volume 44, Numbers 



' -1 d> nw 

in 



e vabe and a n a eae >ui,ta ro- 



In accordance with section 312(b) of the Act (7 U S r <?^f 
213(b), respondent Ralph J Mcrip^H.. j Section 

County Stock Yard, Inc are eafh hi f n-Pandont Saluda 

the amount of E ght Thould % "T^ * dvil P enalt y 

F ' V6 Hundred 



o gt Thoud 
($8,500.00) Dollars. F ' V6 Hundred and no/100 

sha " "ecorne effective on 



RONALD L. RUST 1205 

Volume 44, Number 3 

In re: RONALD L. RUST, P&S Docket No. 6453. Decided June 19, 
1985. 

Issuing insufficient funds check; engaging: in business without bonding; failure to 
pay when due. 

Stephen Luparello, for complainant. 

Respondent, pro se. 

Decision by William J. Weber, Administrative Law Judge, 

CONSENT DECISION 

This proceeding was instituted under the Packers and Stockyards 
Act (7 U.S.C. 181 et seq,) by a complaint filed by the Administra- 
tor, Packers and Stockyards Administration, United States Depart- 
ment of Agriculture, alleging that the respondent wilfully violated 
the Act and the regulations issued thereunder (9 CFR 201.1 ct 
seq.). This decision is entered pursuant to the consent decision pro- 
visions of the Rules of Practice applicable to this proceeding (7 CFR 
1.138). 

The respondent admits the jurisdictkmal allegations in para- 
graph I of the complaint and specifically admits that the Secretary 
has jurisdiction in this matter, neither admits nor denies the re- 
maining allegations, waives oral hearing and further procedure, 
and consents and agrees, for the purpose of settling this proceeding 
and for such purpose only, to the entry of this decision. 

The complainant agrees to the entry of this decision, 

FINDINGS OF FACT 

1. Ronald L. Rust, doing business as Rust Livestock, hereinafter 
referred to as respondent Rust, is an individual whose address is 
Route 2, Rice Lake, Wisconsin 54868. 

2. Respondent is, and at all times material herein was: 

(a) Engaged in the business of buying and selling livestock in 
commerce for his own account; and 

(b) A dealer within the meaning and subject to the provisions 
of the Act. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and the 
parties having agreed to the entry of this decision, such decision 
will be entered, 

ORDER 

Respondent Ronald L. Rust, his agents and employees, directly or 
indirectly, through any corporate or other device, in connection 



1206 



PACKERS AND STOCKYARDS ACT, 1921 
Volume 44, Number 3 



with his operations subiect tn , 
shall cease and desist from 

re Jrefunf r 
supplemented, and the 
ing a reasonable 
regulations; 



the Act, and thereafter until such 
, bond or its 



3nd Stock yards Act, 



< 



Act ' as Amended and 

*"?"* 3nd maintai - 
, as required by the Act and 



SUbje0t 



re; FARMER AND 



. for complainant 



Decision by Edward H. McGmil AJ 

Mc(jrail > Administrative Law Judge, 

CONSENT DECISION 

ent of Agriculture, alle "' "^ States 



- 



FARMER & STOCKMAN AUCTION, BURDETTE & WEAVER 1207 

Volume 44, Number 3 

sent and agree, for the purpose of settling this proceeding and for 
such purpose only, to the entry of this decision. 

FINDINGS OP FACT 

1. Farmer & Stockman Auction, Inc., hereinafter referred to as 
the corporate respondent, is a corporation organised and existing 
under the laws of the State of Louisiana, with Its principal See O f 
busmesa .located m Clarence, Louisiana. Its mailing addre s s P 
Box 45, Clarence, Louisiana 71414. 

2. The corporate respondent is, and at all times material herein 



was; 



Ca) Engaged in the business of conducting and operating the 
Farmer & Stockman Auction, Inc. stockyard, a posted stockyard 
under the Act, hereinafter referred to as the stockyard- 

(b) Engaged in the business of selling livestock on a commis- 
sion basis at the stockyard, and buying and selling livestock in 
commerce for its own account; and 

(c) Registered with the Secretary of Agriculture as a market 
agency to sell livestock in commerce on a commission basis, and as 
a dealer to buy and sell livestock in commerce for its own account. 
_ 3, Leroy Weaver, hereinafter referred to as respondent Weaver 
is an individual whose business mailing address is P.O. Box 45 
Clarence, Louisiana 71414. ' 

4, Respondent Weaver is, and at all times herein was- 

(a) President of the corporate respondent; 

(b) Owner of 50% of the outstanding stock of the corporate re- 
spondent; and 

(c) Responsible, in combination with respondent Doug Bur- 
dette, for the direction, management and control of the corporate 
respondent. 

6. Doug Burdette, hereinafter referred to as respondent Burdette 
is an individual whose business mailing address is P.O. Box 45 
Clarence, Louisiana 71414. 

6 Respondent Burdette is, and at all times material herein was: 

(a) Vice-president of the corporate respondent* 

(b) Owner of 60% of the outstanding stock of the corporate re- 
spondent; and r 

Cc) Responsible, in combination with respondent Weaver, for 
the direction, management and control of the corporate respond- 
ent. 



1* OM PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

CONCLUSIONS 

The respondents having admitted the jurisdictional facts and the 
parties having agreed to the entry of this decision, such decision 
will be entered. 

ORDER 

Respondent Farmer & Stockman Auction, Inc., its officers, direc- 
tors, agents and employees, directly or through any corporate or 
other dev,ce, and respondents Leroy Weaver and Doug Burdetto, 
their agents and employees, directly or through any corporate or 
other device, shall cease and desist from: 

whilethpif 5 lng in , r^r 658 ^ * market agenc * Sub J ect to the Act 
while their current liabilities exceed their current assets; 

t. tailing to maintain their Custodial Account for Shincers' 
Proceeds ,n strict conformity with the provisions of section sT^ 
of the regulations (9 CFH 201 42J- section *"-L- ^ 






m ct ,- r a ^ 

ion sales, to purchase livestock fo ^ * res P"dent a ' auo- 
orders on an agency basis speculative resale or to fill 



thereafter until it demonstrates fta L f" C " J dayS and 

current liabilities and that U^^?"* T StS exoeed '*" 
been corrected. When wpondeSft^f *'l cu f odial accou t has 
demonstrates that its cu rent ass.t & J Stockl " Auction Inc. 
d that the shortage in its cus tnT^ XCeed lts curre "t liabilities 
sulem " 114 h 



e n s cus tn 
supplemental onferta " 114 has been 



HENRY NORMAN STALLINGS 1209 

Volume 44, Numbers 



line"*" STALLINGS> P&S OCket N - 6 . Decided 



n 

quIremcnt.-Su.pcnslon-Consent " SC1 " C acc rlli ns to re- 

Thotnas Walsh, for complainant. 

StepAen A Ward, Greenville, NC, for respondent 

Decision by John A. Campbell, Administrative Law Judge. 

CONSENT DECISION 

AcM7 S U S cl^T in f^ ted Und6r the Packers and Stockyards 
Act <7 U.S.C. 181 et seq.) by a complaint filed by the Administra 

menfn? A^ S an f, St Ck ?; ardS ^"^'"fatlon. United Stales Depart 
TA* Ag r t f Ure ' a , llegin that th e respondent wilfully violated 
the Act and the regulations issued thereunder (9 CFR 201 1 ft 
seq). This decisum is entered pursuant to the consent decision to 
vas of the Rules of Practice applicable to this p, oceedTng (7 CTO 

^Sf T r n^r dent ? dmitS the J uris dictional allegations in p a r a . 
graph I of the complamt and specifically admits that the Secretarv 
has junsdicbon in this matter, neither admits nor denies the rT 
mammg al egatons, waives oral hearing and further p^cedure" 
and consents and agrees, for the purpose of settling this proceedin 
and for such purpose only, to the entry of this decision g 

The complainant agrees to the entry of this decision. 

FINDINGS OP KACT 

1. Henry Norman Stallings, hereinafter referred to as the re 
spondent, is an individual doing business as Stallings Livestock Re 
spondent's Principal place of business is located" at Green^n " 
North Carolina, and his mailing address is Route 2, Box 242-A 
Greenville, North Carolina 27834. ' 

2 Respondent is, and at all times material herein was, engaged 
in the business of a dealer, buying and selling livestock in com 
merce for his own account. 

3 Respondent is, and at all times material herein was registered 

of Agrioulture as " ed 



1210 PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Numbers 



the jurisdictional 
wilY b7 entered. a " reea ' ^ '"^ f this decision > such <Wda 



ORDER 



sale of hVestock which show fa" 8 " & * PUrchaS <* 

livestock; felse or '"correct weights for sucli 



or 



TIONS FOR ocroh . 

201.73-1). ^vaojuOK) of the regulations (9 CFfi 






"94. DeoJd- 

Operating wl.hou, bo n dl n([ -Civll Penalty_ Cl ,n Mnt . 
LuimreUo, for complainant 
IV. Ofom. for respondent. 

6, 



CONSENT DECISION 



---,, w.uw ;the 

tor, Packere 'and S\ock^is Adm? 1 ? 81 ? flled by the " UI "" 
ment of Agriculture, alleging fh J f ? "' United States D 
the Act and the regulatfons issued th^"?" 1 * Wilfully viu l 
7-X This decision is entered pZnl\ f T^" (9 FR ^l 
viszons of the Rules of Practice n nnHnKir 1 !i < : 0nSent deci sion pro- 
1-138). actlce a PP h cable to this proceeding (7 CFR 



CLOVIS LIVESTOCK MARKET, INC. 12n 

Volume 44, Number 3 



The respondent admits the 



maining allegations, 

and consents and agrees, for the purpose of settlS, Pr Ced , Ure ' 
and for such purpose only, to the entry" fhSJ ^deZon Pr Ceedlng 
The complainant agrees to the entry of this decision.' 

FINDINGS OF FACT 

- -- 



2. Respondent is, and at all times material herein 



and subject to the provisions of the Act; 

(b) Engaged in the business of a market agency, selling li w 
stock in commerce on a commission basis- and g 

(c) Registered with the Secretary of Agriculture mn *i * 
agency to sell livestock on a commission basfs in commerce 

CONCLUSIONS 

partte7hTv1n dent ^d*"* admitted the J uri sdictional facts and the 
will be entered. ecision, such decision 

ORDER 

Respondent Clovis Livestock Market, Inc., its agents and employ 
66* directly or through any corporate or other device?"*" Tnnec- 
bon with its operations subject to the Packers and Stockyards Act 
ahall cease and desist from engaging in business in any capacity for 
which bonding is required under the Act and the regulations win" 
out flhng ; and maintaining a reasonable bond or its equ v 
required by the Act and regulations equivalent, as 

i !!^ 68 ^!! 1 ' is , now in ful1 wmpUance with the 



H,nT^ 6nt I" r 63 ^^ dvil Penalt ^ in the nount of Three 
Hundred Twenty Five Dollars ($325.00), 

The provisions of this order shall become effective on the sixth 
day after service of this order on the respondent. 



m '* PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

In re: DICKIE JOE LADNER, P&S Docket No. 6508. Decided June 
1985. 

Failure to pay when due; suspended Consent. 

Roberta Swartzcndniber. for complainant. 
HesjHinderit, pro se. 

Decision by Victor W. Palmer, Administrative Law Judge. 

CONSENT DECISION 

AcI^uTl???!! 8 inStitUted under the Packers ai 

f t> .' " , e t Seq '^ ^ y a cot nplaint filed by the Adr 

nf:fr ri C A dm ^. Un/ed States 



thA an h r ^ , 

.. This dec sTontfentr P H * th ^^der (9 CPR 201.1 

of " 



B , t 
1.138). ^ractice app] IC able to this proceeding (Y CPli 



jurisdiction in h ma t t e r P h y a , dmitS * hat the 

"Mining allegations, wae oral hi 3dmitS n r denies > 

and consents and a^ees 7o r t h e 1, S /" d flu * her Pcedurc 



agrees to the e 

FINDINGS OK FACT 

ickie Joe Ladner, hereinaftpr * . 

- 



dress is Route 



H) such decision 



-00. . B ARBARA c .0008 CURRY LIVESTOCK 
Volume 44, Number 3 



ORDER 



operations subject to 
shall cease and desist from 
chase price of livestock 



" C0nnection th his 
Stoc kyards Act , 

due th e full pur- 



In re: ROGER CULVER, BARBARA CULVER 
Auc TION , IKC, P &S Docket No. 



5. Harris, for complainant. 
Respondent, pro se. 



Decision by Dorothea A 



CONSENT DECISION 



tor, Packers and St 1 rds Ad m nT t 
ment of Agriculture alkgLg that 
corporate responden does n?t meet 
and that the respondents 



; f n in nff to pay when 



Stat6S 
C nditi n of the 

" 



Practice applicable to 



** 



has jurisdiction in this matter P h 
ing allegations, waive ^ orafhear , 
sent and agree for the pu e f 

purpose only, to the^ 

The complainant agrees to the entry of this decision. 
FINDINGS OP PACT 



the remain - 
' e ' 8nd 



P, Place o f 



to 



PACKERSAS 

44, Number 3 



* Corporate respondent at all t- 

_ W Engaged in the bust 7 "f^" 1 herein ' wa * 
Coos Curry Livestock Auct on I n f Tl^" 6 and P^ating the 
under and subject tQ ^^'^^ a stockyard 

to as the stockyard; provw of the Act, hereinafter referred 

-lling l ivestock !n 



" 
8. Roger Culver, hereinafter rlT' 6 f T its own w>unt 

s.:s-ss:af--i".?rxs 



ement and control. C rp rate P<mdenf . direction 



. 

for 



. Bespondent Barbara 

^^ 

c) In conjunction 



n 

Despondent Coos Curri/ T 

&rusrr ^ 

w 'her device i^ iV6r ' indi dually or th" ' t" d res Po! e nte 



& :r ~ CK A UCTION 



for Shippers , 

tions (9 CFR 201.42), amount e to t ^f the r <^- 
receivable due from the sale of '* ^ *"**> 



tion 201.42 of the regulations (9 CFR 20 2). Pr V1S1 nS of 

rJA^ 7Stsrr; f the ne 

without having sufficient fund, nn ? * commission basis 
bank account "upon wMch ^ 1^' ^ ava ^ M8 in *e 
checks when presented- I6 drawn to P a ^ such 



the 



in the bank account upon wcc., 

checks when presented; aiawn to pay such 

stock"/ and* 1 * ^ Pay/When dUe ' the ful1 P-^ S e price of Kve- 



8. Failing to pay the full purchase price of livestock 
^^ft,KS ^^ - 



, 

memoranda which fully a n ~u v T ^T^' reC rda and 
jeot to the Packers 



e 
ing but not limited to (1) monthlv -r f. legulatlons - lud- 

counts; (2) monthly listing Tn, f f conci i latlon ^ of all bank ac- 
counts (8) a general eZ; mT; d rr h K k8 f r thdr ba k ac - 
record of checks issued (f) a L , * **">' Journal or 



oftta 

- - <" 



1^'i PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

In re: SCHULENBERG LIVESTOCK AUCTION, INC., ARTHUR RAY BKKKN 
and GLENN MILES, P&S Docket No. 6521. Decided June 27, 
1985. 

Falling lo deposit in custodial account; misuse of funds; failing to nmlntnln no 
count Civil Penalty. 

Steven LttpareUo. for complainant. 
fian J. Taber, for respondents. 

Decision by Dorothea A. Baker, Administrative Law Judge. 

CONSENT DECISION 



cur, u Under the Packers and Stockyards 

or P ack e r ^L i ^ ^ COm P Iaint {i ^ by the Administra- 
menf o? A?ri a m S ' C ^ ards Administration, United States Dopart- 

6 ' * 6 tha * the 



te n h 6 ' * 6 r g ta * the res P n dent S wijfully violated 

) . i re Sulation s 1S sued thereunder (9 CPR 201.1 el 



. 

si ns of th PUrSuant to ^ "-ent decsion pro 





si ns of theR n pro- 

1 i 8 , f Practice applicable to this proceeding (7 CPB 

sent and agree, for the purno* nf ffi ^l P^edure, and con- 
-such purpose on, y> to ^^/.^fSS^ ^^ ^ ^ 
The complamant agrees to the entry of this decision. 

FINDINGS OF FACT 



referred to ns 
of busin 



corporate material he ,. eill 

and operat ing tho 



a market 



SCHULENBERG LIVESTOCK, ARTHUR BEKEN & GLENN MILKS 
Volume 44, Number 3 

3. Arthur Ray Beken and Glenn Miles, hereinafter referred to as 
the individual respondents, are individuals whose businesn mailing 
address is Schulenberg Livestock Auction, Inc., P. O. Box JIB, Schu- 
lenberg, Texas 78956. 

4. The individual respondents are both owners and officers of tho 
corporate respondent, The individual respondents uro, and at all 
times material herein were, responsible for the direction, immngo- 
ment and control of the corporate respondent. 

5. The individual respondents are, and at all times imiturinl 
herein were, market agencies within the meaning of that, lorm tut 
defined in the Act and subject to the provisions of tho Act. 

CONCLUSIONS 

The respondents having admitted tho jurisdictionnl Jaul-H and the 
parties having agreed to the entry of this decision, Hiich dcciHion' 
will be entered. 

ORDER 

Respondent Schulenberg Livestock Auction, Inc., iLs offiooi-H dj. 
rectors agents and employees, successors and aasfonH, nncl ronpond 
ents Arthur Ray Beken and Glenn Miles, their agent* and on ploy 

any corporate o 



J ailin S. to Deposit in their Custodial Account for 
8 Pre8Cribed by BMtlon mM 



.. 

Pe^"d^r^^ ^ 

In accordance with ^^ K^^ 
spondents Schulenberg Livestock AnpHn? T r <>1< " & aii 
and Glenn Miles are oin Al ', lhUr " H 

^ civil 



1218 PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

The provisions of this order shall become effective on the sixth 
day after service of this decision on the respondents. 



l P&S Docket No - 6485. Decided 



Default. 



Barbara Harris, for complainant. 
Respondent, pro se. 



Decision by Victor W. Palmer, Administrative Law Judge. 

DECISION AND ORDER 
UPON ADMISSION OF FACTS BY REASON OF DEFAULT 



that the re- 



failure to answer would constitute a I 6 " of Pract ^ and that 
allegations contained in th ^compLtet ^ f &U the mate "'" 

Respondents have failed to fi 

^ibed in the Ru les of P ra tice anS ST*' W " hin the time P^' 
the complaint, which are admTt'ted bv "^f 31 facts alleged In 

an answer are adopted and S eTf orth t-eta POnd / 1 ! 1 tS ' failu '' e ' '<= 
This decision and order H T n as fin dings of fact 

"wof theRu IeS ofSi c : h r eed purauant to - c - 



purauant 

BINDINGS OF FACT 



FACT 



the 



MISCELLANEOUS 1 a 1 H 

Volume 44, Number 3 



2. (a) Respondents, in connection with their operations as a 
dealer, on or about May 2, 1984, purchased 42 head of livestock 
from Union Livestock Yards, Inc., for the amount of $14,897.88, and 
failed to pay, when due, for such livestock. 

ft>) As of January 24, 1984, there remained unpaid an amount 
totalling $14,397.38 for the livestock transaction set forth above. 



CONCLUSIONS 



By reason of the facts found in Finding of Fact 2 heroin, respond. 
ents have wilfilly violated sections 312(a) and 40!) of tho Acl (7 
U.S.C. 1 213(a), 228bJ. 



ORDER 



Respondents Frank and Jan Tittsworth, individually or through 
any corporate or other device, in connection with their activitioH 
subject to the Packers and Stockyards Act, shall coaso and tleaiHt 

stock;' and lkg ^ ^ ^^ dU6 ' the fU " PUrchaH Wko of livo- 
2, Failing to pay the full purchase price of livestock. 

Respondents shall not engage in business as a dealer or markol 
agency subject to the Act for a period of sixty (flO) day* 

This decision and order shall become final without f 



MISCELLANEOUS 
In 0,^ A. REECE , P &S Dockot 



Decision by Dorothea A. Baker> Administrate La,, J Ml , c . 

SUPPLEMENTAL OHDKR 



P 

under the Act until such Ume ashe com ?' " 8 ." r Bt-lriltlt 

mg re q uient s under the Act and 



1 " l) PACKERS AND STOCKYARDS ACT, 1921 

Volume 44, Number 3 

IT IS HEREBY ORDERED that the suspension provision of tlr 
order issued, is terminated. The order shall remain in full fore 
and effect in all other respects. 



In re: PAUL J. SPENCE, P&S Docket No. 6456. Decided May 17, IMfi 
Decision by Edward H. McGrail, Administrative Law Judge. 

SUPPLEMENTAL ORDER 



in the a 
"''>*>'* as a registrant 

"> 



in corapliance with 



No. M* Dedded May 

by Donald A. Campbell, Judicial Officer. 
ORDER DENYING LATE APPEAL 

^!^^fl^ ftcta. an d Stoc) 

Adm.mstrative Law Judge John A r,^ n C?J ' ln which C'" 
on and Order on March 7 1985 ' Sf?*? . Mued an Wtlal Deci- 
spondent on April 1 IORK Hit decision was served on rn 

M U Receipt card H " Slg " atUre a "P e ^ on the Certlfiod 

cWon on" respo'nTen'J'stftef^ lerk Ser " ng Jud S e Campbell's da- 



a a finai 

accordance with fho ,- 

you ^ ^ P -ble rules of practjce 

S 



practjce and 
yS from the receipt of this 



MISCELLANEOUS 122l 

Volume 44, Number 3 



the'tcrettf t0 * e e - Appeal to 

Since no appeal was filed within the 



cease and desist provision together with e 
provision became effective on May 6, 1985 

On May 16, 1985 10 days after the Decision and Order had become 

bec 



his 



The Department's Uniform Rules of Practice nrnvirfp f 
appeal to be filed within 30 days after serviL of th'e Judge's deS 
sion, and further provide that 35 days after the date of service the 
initial Decision shall become final and effective. SpecificaTv thP 
rules provide (7 CFR 1.146(a); 1.142(c)): a Peoitioally, the 

1.145 Appeal to Judicial Officer. 
(a) Filing of Petition. Within 30 days after receiving 

TeTI ^ JUdge ' S dedsi0n ' a Part ^ wh disagrees S 
the decision, or any part thereof, or any ruling by the 

Judge or any alleged deprivation of rights, may appeal 
such decision to the Judicial Officer by filing an 
tition with the Hearing Clerk. 

1.142 Post-hearing Procedure. 



B ft. S deCiS !' L The Judg6 ' within a reasonable time 

after the termination of the period allowed for the filing of 
proposed fmdings of fact, conclusions and orders Ld 
briefs in support thereof, shall prepare, upon the basis of 
the record and matters officially noticed, and shall tile 

\ t n e u ring C ' erk ' th6 Judge ' s dedsio . " copy of 
which shall be served by the Hearing Clerk upon each of 

the part e S . Such decision shall become final and effective 
without further proceedings 35 days after the date of serv 
ce thereof upon the respondent, unless there is an appeal 

uant e totTu5p ICer , b r!; e ^ t0 the P^n/C 
suant to 1.145: Provided, however, That no decision shall 

be final for purposes of judicial review except a final dec! 
sion of the Judicial Officer upon appeal 



1222 



PACKERS AND STOCKYARDS ACT, 192] 
Volume 44, Number 3 



he rules, j am fammar 

h P 7' n d es not b 
the 30-day appeal time has e 

appeal was inadvertently filed 



e of , 

them th the attorneys draffln, 

anA ?' f r Viding that the >' 
4' iCtlve J UIItU 5 da >- s ^ 
WS done so ^at if 






, 1984); 



., 43 Agric. Dec. 



A gr 

late appeal); / re D f ck d f 7~ (Jul y 18, 1983) (order e 
ng motion for relief); Inrlp^"^ ^ 0988, (order de 
Yankee Brokerage, Inc 42 Aa ' t? Agnc ' Dec - $21 (1983)- / 



' Ul 



Fed. 






MISCELLANEOUS 
Volume 44, Number 3 



* negl r 



filed not later than 30 days after the n-,^ UP n " m tior 
wise provided in the ruleffor t he fflin/nf '^ * ^ tlme " thei " 
The absence of such a rule in th. r. ? ! " ? PPea ' (Rule 4(a)(5)) 
Practice emphasizes tha^ ^ o such iuri^H r '"^ Unif rm Rules oi 
the Judicial Officer toLZTt^f^ ^ ^^ t0 
the initial decision has become final B "" 3PPeal after 



Accordingly, respondent's appeal must h j j 
late for the matter to be further conlderL ' 

partment. And the matter should not b e ' ^ an - n6 
court since, under the Department' rules ' ^ *?.* 
final for purposes of judicial review e 'a 
Judicial Officer upon appeal" (7 CFR 1142(0) 



U ls t0 



,hich is reared 



Any person whose registration has been suspended or re 
voked may not again register in his own name or in anv 





ORDER 



Respondent's appeal is denied since it was filed after th Phi f 
Admmistrative Law Judge's decision had become final f 



I*" I'KIUSHAHLE AGRICULTURAL COMMODITIES ACT 

Volume '14, Number 3 

COURT DECISIONS 

In re. UNITED STATES BANKRUPTCY COURT, NORTHERN DISTRICT OF 
JKXAS, DALLAS DIVISION; FRESH APPROACH, INC. v. UNITED 

?7Pm ES n^ AMEHICA; Case No " 385 ~30293-F,(PACA-USDA.2- 
<>760). Decided May 17, 1985 

. (hereinafter 



tor v , . 

Code Hi ? P 6 1011 ^ re]ief und *'' Chapter 11 of the Bank- 
L, ,on Debt r p ff ed ' and continues to operate as Debtor- 

Uring a Variety Of fresh ^uco and 



- T-^ fk^ ^. .^^j ux iiuaii pi-ounce mi( 

the United S^n'" Se f lts P erati s . Debtor had obtained fro 
ic en to bu and Sf f' "* A ^ iculture . Defendant herein, a 
P^l We Mt ^ a Co ^ P t UrSU f ' t0 the P1Wisi na f the 
* 'hc,eina f e pTcl^.e m h S e Lt C e - 19SO> ? ^ a ~ " 98 C ' 



7 US 

apse of its license, Debtor conHni t 

its Petition for rel ef waa fileS Zh v "? PI ' dUCe Up to the dot ' 
-.ion has continued to o^ll ^ S C Urt ' The 
the end Wlth Ut benefit of 



nd Vegetable Compa ny d M ar , ar s ^ce s , Standard 



- 






" "'" 



U.S. BANKRUPTCY COURT & FRESH APPROACH v. USA I22fi 

Volume 44, Number 3 

enjoin Defendant from proceeding further absent an order modify- 
ing the stay. Hearings were held in chambers on May 1, 1986 an(1 
again on May 7 1985, and various compromises were minted by 
Debtor and by the Court. Upon Defendant's refusal to entertain 
su h suggest,ons, th.s Court reluctantly concluded that it is wi 
out authonty to enjoin Defendant from going forward with it". 
mm trative proceedings, notwithstanding the clearly dototorC. 
effect such proceedings will have upon the Debtor's pros, ocis " 
successful reorganization. JU|)LI,IH lot 

DISCUSSION 

As Debtor has suggested in its memoranda filed with thm (;, m n 



ceptions to the stay set forth in Sect ion TOah M? n'T," "' th , ^ 
distinguish such proceedings from thn ^H ' ' '' ^ btor HC ' k ' i lo 
exempted from the stay Ci M ' or regulatory powc.* 

Bankruptcy Court, 647^ ^f 8t f C HU n H """^ *"'* 
an administrative proceeding to im ,'.' Dobtoi> al ' KUO - s Ul l- 

not an action to enforce a"d Drn^M T^T Undor PA(!A ' 
and safety of the conTuaTty Kn^^' ^^ " M ' 
ceeding that directly CO nS ^7.1 *, >W , *><- !>) 
property of the estate. CSS.^bto^M^'T' 1 ^ " 8 t!ourt "'' 
lion v. yifed 5tote DemHrna'nfnf^ ^ % C " m l' t <>" tVyw w . 
N.D. Tex. 1984), in wfflT?n,^ ^ ^ ^ HK() II)kl ' l <'v. 
Energy frora pmeedTng ti h ad ml " LrnT'' 1 " 1 *". I)o ''"""'l 'f 
Debtor therein, for the propositfon Z X??, "P"" UKnInHl lh " 
ty, under Code section 10B to pr e v ' ^ Iho author- 
rom interfering with assets of KJate^" 1 " 1 ""' 11 
distinguishes Co/np< ore and rea l )ollse . 



MO ,, , 

oases involved actions by government^ ff rr" th bllaiH th l 'th 
the estate and redistrib^teTt^ .fou i^ ^ ^"^ '"' 
Bankruptcy Code, a situation not nil? ? u^ 6 tho collloxl "Hhi. 
has pursued a course of S. whid,T **",- Dofc =''"- heroin 
of Debtor's assets, but noTt tempt ht bel ^ "f ftlrther 
au hority to remove the estatrt aZar lhe r " 

Other authori* cited by Debtor 



1226 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



potectnt char 

P'otectmg the environment from forcing a debtor to cease deposit 

ng certain wastes on land located in New Hampshire, as the 'C 

stt s'L , y T Se Pri r t0 " le Petition f <" "Krf Debtor!, 
sists the case at bar presents similar circumstances, apparently 
overlooking Debtor's continued, post-petition operation without 
cense in violation of PACA. While the Secretary's intake twaVo, 

Ttiot n qU ^ " D f r S pre -P etitio " defaults with respect to obi I 
gallons owed to produce creditors, it was made clear during nm 

' SeCret Depar"- t I 



rehef, whereas the Secretary is expressly authored by 






s-t vt 



11 U.S.C. 525 (emphasis added) 






ture, does have the ritn f f" 6 De P artmei >t of Agricul- 
cause the applicant is a d e b? n K '? ^ a Hcense sim P'y >* 
stated in M^nB e *eodr ^"^ As the S th Circuit 
. 728 P.2d ff, '" sth G m^ Pmy V ' ^cultural Marketing 



U.S. BANKRUPTCY COURT & FRESH APPROACH . USA 1 227 

Volume 44, Number 3 

The Secretary is authorized, under 7 U.S C 499h(a) tn 

7s : t L P ^ b licens r r flagrant r d 4 :L h i ( atn: 

ot bection 499b . . . Beene went into bankruptcy after 
fa-hng to pay for the ... perishable produce. This does 
not, however have any effect on the Secretary's power to 



nofthSB r 

Motion b#> of the 1978 Bankruptcy Law in order to author- 

ize continuation of the Secretary's license revocation an 
thonty under PACA when the violations invIeTbts dt 
chargeable m bankruptcy. 

728 P.2d at 351 (emphasis added). Although Beene arose in tho mn 
text of judicial review of an administrative findtg a t h " than an 
appl.ca.on to enforce the automatic stay, the impor of Sec ion 525 
as construed ,s clear. The mere filing of a bankruptcy pet "es 
not prevent the Secretary of Agriculture from dLharging hifor 

cLf % f ry dUti r, S Under PACA ' " e f Which is deniaTof a H- 
cense to a financially insecure applicant. 

Debtor notes what appears to be an internal inconsistency be- 
tween sections 525 and 362, and suggests that Defendant may be 
able to proceed with its adminsistrative action only if this Court 
first orders that the stay be modified. While attractive this a 

ZL m *tT hel r be T f d In Ma T '-^ h <S^: 

Umted States Department of Agriculture, 524 F.2d 1255 (5th Cir. 
1975) the debtor was a produce seller with a valid license Jus 
pnor to its fihngof a petition for arrangement under Chapter XI o 
the Bankruptcy Act, it had ordered and received, but failed to pay 
for, several loads of produce. An order confirming the debtor's plan 
waa approved and entered on the same date the debtor's license ex" 
Pired under PACA section 499d. Shortly thereafter, the Depart- 
1 Ag ulture commenced administrative proceedings 
01 '' nd Ult ateIy Und the debtOT ' 



i flant H aco 

willlul, flagrant, and repeated violations of PACA. The debtor's li 

cense apphcation was denied, and penalties were imposed The 
debtor argued that the Department's actions represented a viola! 

C Sty ' BS n rder 



ed f ' r n ^ sfl y had been ob- 

tamed from the bankruptcy court. The Fifth Circuit disagreed and 
cited with approval Zwick v. freeman, 373 F.2d 110 (2d Cir 1967) 
cert den. 889 U.S. 835 (1968). "' 

"The measures which petitioners object to in the Commod- 
ities Act would seem, to some extent, to conflict with the 
pohcy of the Bankruptcy Act. They prevent petitioners 
from shortly making a fresh debt-free start in the industry 
in which they had been earning their livelihood, although 






PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



they are entirely free at f a ,. ^ 
concerned, to enter 'any oh? 
which appeals to them Ne^L CCUltion 
Purposes of the CommodYfe 1 t 
nid need to ' ' Snd the 

U'ensees 
Act 



the extent of 
the goals of 



StatUte is 
r business 
" ght of 
eari y recog- 
SponsMe persons as 

f the Commod ' 



gressional goal that onlv f da magmg to the con- 

should be engaged in the * S? res V^ Persons 
'ties industry. Although ?h* ? gnCUHuial commod ~ 
extent with the goal of the nil . " C nflict to som e 
- unco nscionab g le , 

524 F.2d at 1257 58 Tt 
there is a conflict between ftT!?. aPPa '' ent that to the extent 
Court is compelled by frtueJT^ ^ and P ^CA 
h and the necessary^ featl J j^ CirCU "' s "" h 
to deny Debtor's application B kptcy Code sectio,, 

^ b ^CA performs for the produce i, 
for the packing y 



dressed by the district 



court 



to PACA 



first obtained. The bank, 
a e q , utaWe powers, as P 
tion 105, to issue the injunction n 
that neither the 



le ave of 



r to Code see- 
the distri =' 



U.S. MNKRUPTCV COUHT * PRESH APPROACH ugA 
Volume 44, Number 3 



intended to be used to sprvo 

where the integrity of the estate T f ^ 6State ' and that 
cy court had no power to " tot Th P * r f tened . *e bankrupt- 
action by the Secretary cam w tht th^ t ! intimated that the 
the exception to the stay s^forth "n IIVSC^?"? 1 ^ y 
ly, the bankruptcy court's order enjo Lw' ft n * ^ ACC rding - 
proceeding was reversed. See / re ^"^ 'j 16 De Pf tment from 
Auction, Inc., 46 B.R. 781, 796 (Bkrtcy ED Iklo^ f' ^""^ 

This Court is also aware of thp nr,li m , ' .j 
the jurisdiction! grant of the Bank^tcv Z T' 10 " 3 impHdt in 
al Judgeship Act of 1984, PubTrlo 98 4 n entS a " d Feder - 
the removal provision, 28 U.S.C < S 1^ TM?? ? Set f rth in 
renders non-removable anv r,rnH u , Statute s P eci cally 
Tax Court and othe7 L'TctL bv Z ^ ^^ ^ 

though the case at bar does not rnvolvJ f 'f 6d ' 1984X AI ' 

Val f & ^ fr ' 



v 

other forum, the prindpof onint P * Va f & ^ from an ' 
moval provisions l^Ll^^T^ eXP '' eSSed ta the re ' 
out Jnrtadictlon to enjor^ ^ the ^pendin^ J f^ "" *"' !t is with - 
As this Court has noted the , g administ fave proceedings. 

enforce his regulatory authoritvluoh 8 T e " tially a ' temptin S to 
362(b)(4) and beyond the scone of tht r 10 f " S . M ' e Pe itted * 



,a & 

plication been filed by the Deb'to tlh , f rem Val ap ' 

W52(a), have entertataed the acUon 1 f^ ^ >. n0t > Under 
without power to T 



ou power to 

de^ir^o^^'ai^^rr^ 6 ^^ ati a - 

pected result, Fresh App c h *' v finH i ^ g " a ' lieve their ex - 

3S& ^^^^?i^^ 

and institute its '^ ltS breath 



and institute its plan. NetheLsthl Co, , 
the constraints of the law anl f^ t. "1 Perate within 
supports the position ^ ^ Secretarv Th P qUe " that the law 
Code section 625 is a clearly driK ^ Pr6SS authori ty In 
to the "fresh start" otherwise' ablet"' T^^ ^ ^^ 
To apply the automatic stay of sectfon 362 m t 
Native proceedings under section 05 ,M , T" 
with section ' 



1230 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

plain Congressional intent that the Secretary have the ability b 
protect the agricultural industry from insolvent participants, Ac 
cording y, this Court must hold that neither section 362 nor 106 an 
available to prevent the Secretary from proceeding, and that th, 
Debtors application for a temporary restraining order must b. 
denied. Signed this 17 day of May, 1985. 



AMERICAN-STREVELL, INC. 12gi 

Volume 44, Number 3 



DISCIPLINARY DECISIONS 



Failure fo pay promptly, 



Dennis Seeker, for complainant. 

-flotert Afcm/4 Salt Lake City, UT, for respondent. 

Decision by John A. Campbell, Administrative Law Judge. 

DECISION AND ORDER 

This is a disciplinary proceeding under the Perishable Agricul- 
tural Commodities Act, 1930, as amended (7 U.S.C. 499a et sea) 
hereinafter referred to as the "Act", instituted by a complaint filed 
on March 81 1983, by the Director, Fruit and Vegetable D^vis on 
Agricultural Marketing Serice, United States Department of Agri^ 
culture. It is alleged in the complaint that during the period No- 
vember 1981 through January 1982, respondent purchased, re- 
ceived, and accepted, in interstate and foreign commerce, from 37 
sellers 134 lots of fruits and vegetables, all being perishable agri- 
cultural commodities, but failed to make full payment promptly of 
the agreed purchase prices, in the total amount of $267,437.65. 

inM C P ^ f the com P laint was served upon respondent on April 11 
1J83, and respondent filed an answer on May 17, 1983, denying cer- 
tain allegations, setting forth that respondent had filed a petition 
under Chapter 11 of the Bankruptcy Code in the United States 
Bankruptcy Court for the District of Utah on December 11, 1981 
and setting forth that the Bankruptcy Court had approved respond- 
ent a Plan of Reorganization on December 17, 1982, which reorgani- 
zation called for payment to unsecured creditors (including the sell- 
ers) of approximately 27% of respondent's debts, replaced all offi- 
cers of respondent and changed respondent's name to Fleming 
Intermountain, Inc. Subsequently respondent withdrew its answer. 
Upon the motion of the complainant for the issuance of a Default 
Order, the following Decision and Order is issued without further 
investigation or hearing pursuant to section 1.139 of the Rules of 
Practice (7 CFR 1.139). 

FINDINGS OP FACT 

1, Respondent, Fleming Intermountain, Inc., formerly known as 
American-Strevell, Inc., is a corporation, whose address is Post 
Office Box 26828, Salt Lake City, Utah 84125. 



1232 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



?! liCe " Sing P ro ions of the Act, license number 

was issued to respondent on March 11, 1975. This license 
was renewed annually, but terminated on December 17, 19 2 when 

3 



( n- the U ited States Bank- 

Court for the District of Utah, Central Division. 



durin n Paragraph 5 of the m P". 

durmg the per.od November 1981 through January 1982, respond 

ent purchased, received, and accepted in interstate and foreign 
commerce from 37 sellers, 134 lots of fruits and vegetables all 



agreed 

CONCLUSIONS 



lT' 8 fai l Ure t0 makB fu " Payment P ro Py th respect 
the 134 transactions set forth in Finding of Fact No 3 above 

l' 7 6 ulc^rbrf 3 ^ , a "t r 114 v"o>ations C of N S ec abV 
Act (7 U.S.C. 499b), for wh,ch the Order below is issued. 



ORDER 



A finding is made that respondent has commited willful flaerant 
and repeated violations of Section 2 of the Act (7 U.S C 499b) and 
the facts and circumstances set forth above, shall be published 






RINELLA'S WHOLESALE, INC. 1233 

Volume 44, Number 3 

In re: RINELLA'S WHOLESALE, INC., a/t/a RINELLA'S WHOLESALE 
FRUIT AND PRODUCE, INC., PACA Docket No. 2-6695. Decided 
May 6, 1985. 

Failure to make prompt payment License revoked. 

Andrew Stanion, for complainant. 

Richard A. Gain; Williamsport, PA, for respondent. 

Decision by Victor W. Palmer, Administrative Law Judge. 

DECISION AND ORDER 

This is a disciplinary proceeding under the Perishable Agricul- 
tural Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.} 
hereinafter referred to as the "PACA"), instituted by a complaint 
filed on December 10, 1984, by the Director, Fruit and Vegetable 
Division, Agricultural Marketing Service, United States Depart- 
ment of Agriculture. 

It is alleged in the complaint that during the period January 
1982 through June 1983, respondent purchased from four sellers, 
and accepted in interstate and foreign commerce, 88 lots of fruits 
and vegetables, all being perishable agricultural commodities, but 
failed to make full payment promptly of the agreed purchase prices 
m the total amount of $163,573.58. Complainant further alleged 
that such actions were willful, flagrant and repeated violations of 
section 2 of the Act, and requested that respondent's license be re- 
voked, 

On January 4, 1985, respondent executed an answ 
spondent in effect admitted the allegations of tb*> 
respect to $142,055.60 of the amount alleged in t 
past due and unpaid. 

FINDINGS OF FACT 

1. Respondent, Rinella's Wholesale, Inc. a/t/a Rinella's Whole- 
sale Fruit and Produce, Inc., is a Pennsylvania corporation whose 
address is 427 West 3rd Street, Williamsport, Pennsylvania, 

2. Pursuant to the licensing provisions of the Act, license number 
771626 was issued to respondent on July 7, 1977. This license was 
renewed annually and is next subject to renewal on July 7, 1985. 

3. The Secretary has jurisdiction in this proceeding. 

4. As more fully set forth in complainant's Motion for Decision 
on the Pleadings and Supporting Memorandum, during the period 
January 1982 through the June 1983, respondent purchased from 
four sellers, and accepted, in interstate and/or foreign commerce, 
88 lots of fruits and vegetables, all being perishable agricultural 



PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



m the total amount of $142,055.60. 

CONCLUSIONS 



co * Pe 

failed to makep e ^ tai " s f '"ssions that respondent has 

to four sellers for 8 C rf D1 S y 'u ^ . am Unt f *"2-M6.6( 
and accepted in the course of ?! 7 "* '* P urchas d, received 
This constitutes willful fla E lf "? ^ f reign mmm ' 
2 of the Act (7 USC 49% )A an l re f ated viol ^ionB of soctio,, 
issued. 4 " bX Acc '-dmgly, the following Order is 

ORDER 

Respondent's license is revoked 



SffeCt - "> day after this Decision 






hereof unless appealed to the 
within thiri 30 days 



<35) days after 
* Party * the P"I. 
in 



May 20, 1985. 
Decision by Donald A. Ca mpbM , JudicM Qfficer 
ORDER DENY.NG PETITION pOR 



in which Administra 
initial Decision and Orr 



" e "earing Cler 
s'on on respondents' attorney states 

be final for purposes of 
issued by the Secretary 



-6695. Decided 



499a 
iSSUed 



Palmer>s 



Pr0ceed - 
s an a 

dedsion 



RINELLA'S WHOLESALE, INC. 1235 

Volume 44, Number 3 

In accordance with the applicable rules of practice and 
procedure, you will have 30 days from the receipt of this 
notice in which to file with the Hearing Clerk an appeal to 
the Secretary. 

Since no appeal was filed within the prescribed time limit, on 
May 7, 1986, the Hearing Clerk issued a Notice of Effective Date of 
Decision and Order stating: 

In accordance with the applicable rules of practice, the 
Decision and Order became final on May 6, 1985, and will 
become effective on May 17, 1985. 

Six days after receiving the Notice of Effective Date of Decision 
and Order, respondents' attorney mailed a Petition for Reconsider- 
ation, filed May 17, 1985. 

The Department's Uniform Rules of Practice provide for an 
appeal to be filed within 30 days after service of the Judge's deci- 
sion, and further provide that 35 days after the date of service, the 
initial Decision shall become final and effective. Specifically, the 
rules provide (7 CFR 1.145(a); 1.142(c)): 

1.145 Appeal to Judicial Officer. 

(a) filing of Petition. Within 30 days after receiving 
service of the Judge's decision, a party who disagrees with 
the decision, or any part thereof, or any ruling by the 
Judge or any alleged deprivation of rights, may appeal 
such decision to the Judicial Officer by filing an appeal pe- 
tition with the Hearing Clerk. 

1,142 Post-hearing Procedure, 



Co) Judge's decision. The Judge, within a reasonable time 
after the termination of the period allowed for the filing of 
proposed findings of fact, conclusions and orders, and 
briefs in support thereof, shall prepare, upon the basis of 
the record and matters officially noticed, and shall file 
with the Hearing Clerk, the Judge's decision, a copy of 
which shall be served by the Hearing Clerk upon each of 
the parties. Such decision shall become final and effective 
without further proceedings 35 days after the date of serv- 
ice thereof upon the respondent, unless there is an appeal 
to the Judicial Officer by a party to the proceeding pursu- 
ant to 1.145: Provided, however, That no decision shall be 



123G 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



the rules, I am fammar w h til " 1* the att meys drafti '* 



appeal that is Hied after! 
Agric. Dec. ___ (Jan 15 



___ 
Cir. Feb. 7, 1985) 

(Sept 14 1984) 

Wuly 12, ^84 , No 
(erroneously) reviewed meri?, 
peculiar circumstances X 
Agric. Dec. -!l Nov 7 19 3 
Veg-Pro Distributors 42 A^rir 
- g late appeal,; / ^^f 2 
motion for re li e f) ; / re > eiro 
yafo e Brokeng,. l m 42^1 n 
missing appeal)^', fiJed'on same d 
timely); / Bri ^ 41 A^ic Dec 214fi 
appeal), reconsideration denied 41 

,, 40 Agri 
' 



2. Jurlsdictlon * hear an 

^ In n Hutta *> U 

' Na 86 - 1220 ("H 
Co " 43 Agric. Dec. 



' 1985) (cou " 
late ap P eai ' und 

f 6 *"*"* Ca ' 
late a PP eal) = In " 



denying 



, 
' 427 r 28a983 ' < di, 

fi " al 1Mt 



late 
mg appeal). 






Re- 

<?** ^ 
(order dismiss- 



Appellate Procedure. As 
- s , 716F.2dT 395 



rule f s 



Federal Rules of 



*> 



with the trial court 
f the judgment. H 
"mandatory and jurisdictional." 



when the 

mUSt be filed 
date * entry 



filing . notice 



Rules 



ALSTON PRODUCE 1237 

Volume 44, Number 3 

become final. Under the Federal Rules of Appellate Procedure, the 
"district court, upon a showing of excusable neglect or good cause, 
may extend the time for filing a notice of appeal upon motion filed 
not later than 30 days after the expiration of the time" otherwise 
provided in the rules for the filing of an appeal (Rule 4{a)(5)). The 
absence of such a rule in the Department's Uniform Rules of Prac- 
tice emphasizes that no such jurisdiction has been granted to the 
Judicial Officer to extend the time for filing an appeal after the 
initial decision has become final. 

Accordingly, respondent's petition for reconsideration should be 
denied, since it is too late for the matter to be further considered 
by anyone in this Department. And the matter should not be con- 
sidered by a reviewing court since under the Department's rules, 
"no decision shall be final for purposes of judicial review except a 
final decision of the Judicial Officer upon appeal" (7 CFR 
1.142(c)). 

ORDER 

Respondents' petition for reconsideration is denied since it was 
filed after the Administrative Law Judge's decision had become 
final. 



In re: ALSTON PRODUCE, PACA Docket No. 2-6606. Decided May 22, 

1985. 

Failure to make payment promptlyDecision. 

Respondent received and accepted on consignment in foreign commerce a pedahnblo 

agricultural commodity, but failed to make full payment promptly. 

Edward Silverstein, for complainant, 
Respondent, pro se, 

Decision by Edward H. McGrail, Administrative Law Judge. 
DECISION AND ORDER 

This is a disciplinary proceeding under the Perishable Agricul- 
tural Commodities Act, 1930, as amended (7 U.S.C. 449a et seq.J 
hereinafter referred to as the "Act", instituted by an amended 
complaint filed on November 2, 1984, by the Director, Fruit and 
Vegetable Division, Agricultural Marketing Service, United States 
Department of Agriculture. It is alleged in the complaint that 
during the period January through February 1983, respondent ac- 
cepted on consignment, in foreign commerce, from one shipper, 25 
lots of tomatoes, a perishable agricultural commodity, but failed to 



1288 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number S 

make full payment promptly of the net proceeds received by it 
from the sales thereof in the total amount of $116,499.28. 

A copy of the amended complaint was served upon respondent 
which complaint has not been answered. The time for filing an 
answer having run, and upon the motion of the complainant for 
the issuance of a Default Order, the following Decision and Order 
r "^ without further investigation or hearing pursuant to sec - 
tion i.ida of the Rules of Practice (7 CFR 1.139). 

FINDINGS OF FACT 

Alst ? I i, P , r , duce ' ta a Partnership, consisting of 
' Whose 



rSUant t0 ^ licensin e Provisions of the Act, license number 
in paragraph 2 above sub^t t the AeTh the addresses <* 



, > f ' *- '"to , oral 

Montemayor, Angel del T ^7^^'' r n behalf f Robort 
a Roberto Montemayor & A^ocfate M T^ 8 partners hip d/b/ 
(hereinafter "Montemayt'O Pu'nt t. ^ Tamauli P a - Mexico, 
the period J anuary t J ^ ^ the agreement, during 

and accepted 25 trucklots contain n^J t ,?' f, s P nde nt received 
tomatoes, a perishable agri ultu "f * al , f 18 ' 72 P acka ^ of 
merce for sale and distribut on on b h If ?M ^ foreign COm - 
required to do so by the HJ Montemayor. Although 

CFR 46.20), the re pond ent tZ T^ ? UrSUailt to the Ac tff 
number to the tomatoes rece led fro * VfT "" identi ^"g lot 
den .fy and segregate the sale of he 5" emayor ' and ^iled to 
the lot numbers on its sales ^voices E T fu S ld by reoordi "g 
matoes were intermingled with ?he If f ' ? 6 Sales of *^e to- 
Moreover respondent rece.V d paym% f ' her lots "f tomatoes. 
made durmg this period of tirnVbutfatd To , SaleS f tomatoes 
r aS " ^ 



'*******.' II lei vt IT* at? txx tl -i i~, u^j Ldillf^r* a vi nn<^ * 

rwpi*^ 1 . to the sal es of thp IS 070 , uer an accounting 
^eived, and, m addition, failed to make ?!?, PaCkagGS f tomatoes 

make full payment promptly of 



ALSTON PRODUCE 1289 

Volume 44, Number 3 

the net proceeds to Montemayor. Respondent's records reflect the 
breakdown, by size, of the 18,072 packages of tomatoes it received 
from Montemayor. Its records also reflect the sales prices it re- 
ceived for all tomatoes of those sizes which it sold during the 
period January through February 1983. Based on the average of 
those sales prices, respondent should have accounted and made full 
payment to Montemayor at least as follows, less provable expenses, 
with regard to the sale of the 18,072 packages of tomatoes: 



QUANTITY SIZE TOTAL 



1 ' 124 6X5 6.58 $0.271.92 

1)277 5X<i 8.28 10.R73.fifi 

7 ' 016 6x6 7.08 40,073.28 

4 ' 61d 6x7 6.09 28,OlM).2ft 

2 ' 720 7x7 5,49 14,032.80 

*' 321 no size 6,20 (UM8.46 



18 ' 072 



CONCLUSIONS 



Respondent's failure to make full payment promptly with respect 
to the 25 transactions set forth in Finding of Pact No. 3, above, con- 
stitutes willful, repeated and flagrant violations of section 2 of the 
Act (7 U.S.C. 499b), for which the Order below is issued, 



ORDER 



A finding is made that respondent has committed willful, fla- 
grant and repeated violations of section 2 of the Act (7 U.S.C. 49%) 
and the facts and circumstances set forth above, shall be published' 

This order shall take effect on the llth day after this Decision 
becomes final. 

Pursuant to the Rules of Practice governing procedures under 
the Act, this Decision will become final without further proceed- 
ings 35 days after service hereof unless appealed to the Secretary 
by a party to the proceeding within 30 days after service as provid- 
ed in sections 1,139 and 1.145 of the Rules of Practice (7 CFR 1 139 
and 1.145). 



1240 



June 3, 1985 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



l WHOLESALE - INC, a/t/a BELLA'S WHO, mi 

N ' 2 - 



Judicial Officer has no ,u diction ., " eC ' S ' n h " d become ni1111 

HBS become final The Del tol,. 7 "." aPPe< " "'^ after the toitinl 



APPEAL TO THE SECRETARY OP AGRICULTURE 
sale ' S ^' 8 Wh leSale ' Inc " a/t/a 



filed against R ^Pondent on December 10 

^r=~=r-"-=^ 

U.S C 499 b(4 1ShaWe A ^ cultu ^l Commodities Act (1 



new fin dings , conclus ns and . 
and that the said Order be 



MAGIC CITY PRODUCE COMPANY, INC. 1241 

Volume 44, Number 3 

In re: MAGIC CITY PRODUCE COMPANY, INC., PACA Docket No. 2- 
6448. Decided June 17, 1985. 

Failure to pay in full; failure to pay promptly. 

Respondent made purchase of commodities from various vendors and was delin- 
quent in submitting payment on numerous occasions, Respondent's license had pre- 
viously been revoked for failure to pay reparation awards issued against it. Re- 
spondent was not solvent, and was attempting to pay delinquent bills from proceeds 
of current sales in violation of the Act. Respondent's license is revoked. 

Edward M, Silverstein, for complainant. 

John P. Whittinglon, Birmingham, AL ( for respondent. 

Decision by Donald A, Campbell, Judicial Officer. 

This is a disciplinary proceeding under the Perishable Agricul- 
tural commodities Act, 1930, as amended (7 U.S.C. 499a et seq.\ in 
which Administrative Law Judge William J. Weber filed an initial 
Decision and Order on February 20, 1985, revoking respondent's li- 
cense for failure to pay sellers in full for produce purchased and 
accepted in interstate commerce.* 

On April 12, 1985, respondent appealed to the Judicial Officer, to 
whom final administrative authority to decide the Department's 
cases subject to 5 U.S.C. 556 and 557 has been delegated (7 CFR 
2,35).** On May 6, 1985, the case was referred to the Judicial Of- 
ficer for decision. 

Based upon a careful consideration of the record, the initial Deci- 
sion and Order is adopted as the final Decision and Order in this 
case, except that the effective date of the order is changed in view 
of the appeal, and the order is amended by adding a finding that 
respondent has committed repeated and flagrant violations of the 
Act. Additional conclusions by the Judicial Officer follow Judge 
Weber's conclusions. 



* See generally Campbell, "The Perishable Agricultural Commodities Act Regula- 
tory Program," in 1 Davidson, Agricultural Law, ch, 4 (1981 and Aug. 1984 Supp.), 
and Becker and Whitten, "Perishable Agricultural Commodities Act," in 10 Harl, 
Agricultural Law, ch. 72 (1980 and May 1982 Supp.). 

** The position of Judicial Officer was established pursuant to the Act of April 4, 
1940 (7 U.S.C. 46Qc-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 
3219 (1953), reprinted in 5 U.S.C. app. at 1068 (1982). The Department's present Judi- 
cial Officer was appointed in January 1971, having been involved with the Depart- 
ment's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' 
appellate litigation relating to appeals from the decisions of the prior Judicial Offi- 
cer; and 8 years as administrator of the Packers and Stockyards Act regulatory pro- 
gram). 



1242 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION 



CFR 46.1 through 46 45) ' lm P lement '"g regulation. (1 






PERTINENT STATUTORY PROVISIONS 
"1. Sec. 2(4); [7 USC 499b]: 



staten n 









MAGIC CITY PRODUCE COMPANY, INC. 1243 

Volume 44, Number 3 

by such broker; or to fail or refuse truly and correctly to 
account and make full payment promptly in respect of any 
transaction/in any such commodity to the person with 
whom such transaction is had; or to fail, without reasona- 
ble cause, to perform any specification or duty, express or 
implied, arising out of any undertaking in connection with 
any such transaction; 
2, Sec. 4(a); [7 U.S.C. 499d]: 

(a) Whenever an applicant has paid the prescribed fee the 
Secretary, except as provided elsewhere in this Act, shall 
issue to such applicant a license, which shall entitle the li- 
censee to do business as a commission merchant and/or 
dealer and/or broker unless and until it is suspended or 
revoked by the Secretary in accordance with the provisions 
of this Act, or is automatically suspended under section 
7(d) of this Act, but said license shall automatically termi- 
nate on any anniversary date thereof unless the annual 
fee has been paid: Provided, That notice of the necessity of 
paying the annual fee shall be mailed at least thirty days 
before the anniversay date: Provided, further, That if the 
annual fee is not paid by the anniversary date the licensee 
may obtain a renewal of that license at any time within 
thirty days by paying the fee provided in section 3(b), plus 
$5, which shall be deposited in the Perishable Agricultural 
Commodities Act fund provided for by section 3(b): And 
provided further, That the license of any licensee shall ter- 
minate upon said licensee, or in case the licensee is a part- 
nership, any partner, being discharged as a bankrupt, 
unless the Secretary finds upon examination of the cir- 
cumstances of such bankruptcy, which he shall examine if 
requested to do so by said licensee, that such circum- 
stances do not warrant such termination; 

3. Sec. 8(a); [7 U.S.C. 499h]: 

(a) Whenever (a) the Secretary determines as provided in 
section 6 that any commission merchant, dealer, or broker 
has violated any of the provisions of section 2, or (b) any 
commission merchant, dealer, or broker has been found 
guilty in a Federal court of having violated section 14(b) of 
this Act, the Secretary may publish the facts and circum- 
stances of such violation and/or, by order, suspend the li- 
cense of such offender for a period not to exceed ninety 
days, except that, if the violation is flagrant or repeated, 



1-1 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

the Secretary may, by order, revoke the license of the of- 
fender. 

PERTINENT REGULATIONS 

7 CFR46.1 elseq. 

Sec. 46.2(aa). 

'Full payment promptly' is the term used in the [PAGA] in 
specifying the period of time for making payment without 
committing a violation of the [PACA]. 'Full payment 
promptly, 1 for the purpose of determining violations of the 
[PACA] means: 



<5) Payment for produce purchased by a buyer, within 10 
days after the day on which the produce is accepted, 



- ' ^fe<J however, That as an exception to para- 
graphs (aa) (1) through (9) of this section, the parti w 
may, by express agreement at the time the contract is 
made provide a different time for payment, and f 



n * en payment ****" the 

* , S ; haU < nstitut e 'ft* Payment promptly'; 

such ~\ "^ the r ty daimin * the Stance of 

have Z^ll'T^ aS - t0 time f 
ndve cne our oving it. , ." 



a PACA licensee abou6vef^r, S52 7 ' Res P"dent was 
"W to pay the J^ffl^l*^. 1984 ' ^ H 
However, Respondent's im eiltj wai lee. ihe license expired. 

suspended for failuro 



that Con,- 

that Respondent v, nnt , P nents records "d - 
'e agreed Pun^cTJlS fU " . Pa f mSnt ^""^ of 
received and accepted by RloTd*? Sg ultu l commodities 



MAGIC CITY PRODUCE COMPANY, INC. 1245 

Volume 44, Number 8 

were sufficient grounds to institute disciplinary action and could 
result in revocation or suspension of its PACA license. 

A year later, in October 1983, Respondent's records were again 
reviewed. That review established that between August 1980 and 
June 1983, Respondent purchased, received and accepted 271 lots of 
fruits and vegetables subject to the PACA, from 44 sellers, in inter- 
state and foreign commerce, and failed to make full payment 
promptly of the agreed purchase prices in the aggregate amount of 
$277,118.24.' 

Respondent had failed to correct its earlier violations and was 
continuing to violate tfle law. 

There is no evidence to establish any "express agreement as to 
the time of payment" which would authorize Respondent's pay- 
ment practices here. 

There is no evidence to establish any custom or practice in the 
industry that could override the regulatory requirements for 
prompt payments. 

The fact that some vendors continued to sell fruits and vegeta- 
bles to Respondent long after Respondent had failed to promptly 
pay that vendor for fruits and vegetables purchased earlier does 
not establish an "express agreement" for a payment date as au- 
thorized by section 46.2(aa)(9). 7 CFR 4G.2(aa)(9), 

Payment of about $98,000 on these debts constitutes only partial 
payments of Respondent's obligations, not full payment and not 
timely payment within the regulatory requirement or any "express 
agreement at the time the contract [was] made." 7 CFR 46.2(aa)(9). 

The fact that Cecil Dodson, the president and owner of Magic 
City Produce, possesses an excellent personal reputation, and 

(1) the fact that he struggled at length to avoid bank- 
ruptcy and pay the debtors, and 

(2) the fact that many vendors accepted delinquent par- 
tial payment as "payment in full," and 

(3) the fact that Respondent has handled some $88 mil- 
lion dollars worth of produce during the last 17 years, 
before succumbing to severe financial stresses; and 

(4) the fact that Respondent suffered about $200,000 in 
losses in a two year period, caused by theft of produce 
from his warehouse, was a major factor causing Respond- 
ent's financial stresses, and 



1 An itemized detailed list of each transaction, with all relevant material, is set 
forth in paragraph 6 of the Complaint. 



1246 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

(5) the fact that Respondent took the cash value of per- 
sonal life insurance policies to pay some of delinquent 
debts, and 

(6) the fact that the business was operated for approxi- 
mately 35 years with no complaints or financial difficul- 
ties, 2 and 

(7) the fact that some industry colleagues who personally 
know and work with him have high regard for him, have 
all been considered and are not factors which can affect or 
change the outcome, under legal precedents that stringent- 
ly bind this proceeding. There is no discretionary room 
available. 

The fact that vendors continued selling to Respondent many 
months after Respondent was already delinquent in paying for 
produce, and after the vendor was told that Respondent was "slow" 
in paying, suggests that the vendors preferred to risk partial or 
nonpayment from Respondent, over further price reductions to 
other purchasers, or inability to sell the produce. 

Respondent engaged in the common commercial practice of 
trying to survive and pay delinquent bills from proceeds of current 
sales. This has been determined to be a serious violation of the 
prompt payment provisions of the Act and implementing regula- 
tions, and the basis for license revocation. 3 



Respondent's October 16 1984 Motion to supplement the record 
with a letter from one of the creditors stating it had received "pay. 
ment in full" is granted. 

However this was not timely payment as required, and it is not 
significant for purposes here. 



"By notice in writing, dated October 12, 1982, respond- 
ent was informed that failures to make full payment 



MAGIC CITY PRODUCE COMPANY, INC. 1247 

Volume 44, Number 3 

promptly of the agreed purchase prices for perishable agri- 
cultural commodities received and accepted in interstate 
or foreign commerce are violations of the PACA. Respond- 
ent was given the opportunity to demonstrate or achieve 
compliance with all lawful requirements of the PACA, but 
has failed to do so. 4 

"The acts of respondent in failing to make full payment 
promptly of the agreed purchase prices for the 271 lots of 
fruits and vegetables it purchased, received, and accepted, 
as more specifically alleged in paragraph 6 of the Com- 
plaint, constitute willful, flagrant and/or repeated viola- 
tions of section 2 of the PACA (7 U.S.C. 499b). 
< "Complaint fl5; Answer fl6; HT pages 17-28; CX. Nos. 1 and 2." 
(Complainant's opening brief, pages 4-5) 



A. Introduction 

As noted above, this is a disciplinary proceeding brought pursu- 
ant to section 8 of the PACA (7 USC 499h). The PACA was enacted 
to regulate and control the handling of fresh fruits and vegetables. 
71 Cong. Rec. S2163 (May 29 1929). Its passage was occasioned by 
the severe losses that shippers and growers were suffering due to 
unfair practices on the part of commission merchants, dealers, and 
brokers. H. R. Rep. 1041, 71st Cong., 2nd Sess. (1930). Its primary 
purpose was to provide a practical remedy to small farmers and 
growers who were vulnerable to the sharp practices of financially 
irresponsible and unscrupulous brokers in perishable agricultural 
commodities. 4 Chidsey v. Guerin, 443 F.2d 584 (6th Cir. 1971 ; 
O'Day v. George Arakelian Farms, Inc., 636 F.2d 866 (9th Cir 1976). 
"Accordingly, certain conduct by commission merchants, dealers, 
or brokers [was] declared to be unlawful. 7 U.S.C. 499b. Id. at 
858, Enforcement is effectuated through a system of licensing ^with 
penalties for violation. H. Rep. 1041, 71st Cong, 2d ^ Sess 3 (1980). 
See, also, George Steinberg and Son, Inc. v. Butz, 491 F.2d 98S W 
Cir.), cert, den., 419 U.S. 830 (1974). 

The instant proceeding is an enforcement action of the > Kind to 
which reference is made above. Its purpose is bifurcated: tirst, its 

-It has been held that Congress intended by enactment of the PACA, to establish 
bars to preclude all but financially responsible persons from engaging m the busi- 
nesses subject to the PACA. ZM v. Freeman, 373 P.M W,U1WC*1 cert, den 
389 U.S. 835 (1967); Marvin Tragath Co. v. United States Dept. of Agr., 524 F,2d 
1256, 1257 (6th Cir. 1975). 



1248 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

purpose is to determine whether respondent did violate section 2(n) 
of the PACA (7 U.S.C. 499b(a)); and secondly, if it is determined 
that it did commit such violations, to further determine what sanc- 
tion should issue as a consequence thereof. These issues are dealt 
with seriatim below. 

B. Respondent violated the PACA 

Section 2(4) of the PACA (7 U.S.C. 499b(4)) makes it unlawful. 
inter alia, for any commission merchant, dealer, or broker E to fail 
to "make full payment promptly" of its obligations with regard to 
transactions involving perishable agricultural commodities made in 
interstate commerce. Insofar as it is pertinent here, "full payment 
promptly" is defined by the Department (7 CFR 46.2(aa)(6)) as re- 
quiring payment of the agreed purchase prices for produce within 
10 days after the day on which the produce is accepted. Complain- 
ant alleges that Magic City violated the PACA and the Regulations 
by failing to make full and prompt payment of the agreed purchnue 
pnces with respect to 271 transactions involving fruits and vegeta- 
bles, all being perishable agricultural commodities, in interstate 
commerce, for a total of $277,118.24. While the respondent, in its 
answer, denied violating the PACA it did not, at the hearing, norl- 
ously dispute the fact that it failed to make full payment promptly 

^ ^ qU Lol by the re ulations - In thj s regard, it is noted that some 
o the ^77,118.24 indebtedness which is the subject of the com- 
plaint has been paid, albeit late. (See Respondent's Exhibits NOB. 5 
and b.) This does not materially alter the fact of Magic City's viola- 

nocm J ^ altimore Tomato Company, Inc., 39 Agric. Dec. 412 
(1980); and V.P.C., Inc., 41 Agric. Dec. 734 (1982). 
Respondent's failures to make timely payment, as alleged in the 
Vi lation f the P roh *itions of section 2 of 



' ' 1081 
F<2d m (4th Cir - } ' ** *. 439 U-S. 810 

Moreover, the numerous violations committed by respondent 
cons itute flagrant and repeated violations of the PACA. 



h 63 F ' 2d 370 > ~ C5th dr. 

. Steinberg & Son, Inc., 32 Agric. Dec. 236 (1973), affd, sub 
Stemberg and Son, Inc. v. Butz, Slipr a, 491 F^d 988 * 



5 These terms are defined in 7 U.S.C, 499a(5), (6) and (7) 



35 A f . Bee. 



Con I in 11 ud 



MAGIC CITY PRODUCE COMPANY, INC. 1249 

Volume 44, Number 3 

Furthermore, these violations were willful. A violation is willful if, 
irrespective of evil motive or erroneous advice, a person intention- 
ally does an act prohibited by a statute or if a person carelessly dis- 
regards the requirements of a statute. Hemy S. Sfiatkin, 34 Agric. 
Dec, 296 (1975); G. Steinberg & Son, supra, 32 Agric. Dec. 236, 263- 
269; Goodman v. Benson, 286 F.2d 896 (7th Cir. 1961). 7 Respondent 
might well have foreseen that it could not make "prompt" pay- 
ment for the perishables it ordered, yet respondent continued to 
make purchases. Respondent was aware of the Act's requirements 
yet it continued to buy knowing that each purchase might well 
result in another violation. In point of fact, respondent's owner Mr. 
Cecil Dodson testified that, after receiving the warning letter sent 
to the company in October 1982, he had an audit done and was told 
to have his company file in bankruptcy, HT pages 81-82. Yet, 
having this knowledge, he continued to operate respondent making, 
at least, 231 more purchases having a value of over $220,000. Mr. 
Dodson should have made sure that respondent had sufficient capi- 
talization with which to operate. It did not and, consequently, could 
not pay its suppliers. Under these circumstances, respondent was 
operated in careless disregard of the payment requirements of the 
PACA, and respondent's violations were, therefore, willful. Atlantic 
Produce, supra, 35 Agric. Dec. 1631, 1961; Rudolph John Kafcsak, 
39 Agric. Dec. 683 (1980), aff'd. mem., 673 F.2d 1329 (6th Cir. 1981). 

C. Sanction 

As sanction for its violations, complainant seeks revocation of re- 
spondent's license as the proper sanction in this matter. In view of 
the number of violations and the amount of money involved there- 
in, 8 it is clear that such a sanction is mandated by the Depart- 
ment's sanction policy. Gilardi Truck & Transportation, Inc., supra. 

Respondent's violations are malum prohibltum-not malum in se. According- 
ly, there is no inconsistency between the finding that [respondent] conducted 
himself responsibly and honorably, and the finding that respondents failure to 
pay over $48,000 for produce in 73 transactions and $200 in brokerage fees in 20 
transactions constitutes repeated, flagrant and willful violations of _the Act 
' See also, American Fruit Purveyors v. United Slates, supra, 880 F.2d 870 at J74. 
"Under PACA, an action is willful if a prohibited act is done intentionally, irrespec- 
tive of evil intent, or done with careless disregard of statutory W^ 

- Among the factors which should not be considered is the effect hat such ^a find 
ing may have on those responsibly connected with the reap ,onde :nt corpora twn. S uch 
a factor is not material or relevant to this proceeding. Atlantic Produce *m,85 



525 P-M 1265 
pm, 37 Agric. 

Dec. 705, 715; Continued 



a acor s no 

Auric Dec 1631; Marvin Tragash Co. v. United States Dept. ofAgr., 525 P-M 1265 

Wh Cir. 1975). See, also, J. H. Norman & Sons Distributing Co.. *pm, 37 Agric. 



1250 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 8 

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICKH 

Respondent argues on appeal that it had express a 
with its suppliers that payment need not be made within the 10 
days provided m the regulations. However, that argument is refut- 
ed by the testimony of Mr. Cecil Dodson, who was president and 

nZL resp nd ? nt % lfc ceased operating, that at the tirno of 
purchase, respondent did not have specific agreements with the 
supplier, which permitted it to pay the suppliers more than 10 
days after receipt of the produce (Tr 100-04) 

L 31 ^, 63 ^ at ^ at leaSt had im P Iied ^amenta with 
for delayed payment, but the regulations were amend- 



an ex Pr ss^emeit /r^ ff V6 , f an implied a g'^t n S 
Agric.Dec. 9 5 r958-61 i """V*"* Opm Ai '-t, Inc., 41 



of the suppliers 



t , acce p |M , 

of the suppliers. hat respect Wlth respect to moat 



ic.^ 1 pay Tt of the p""*- 

ruptcy, that does not constUut. llf ' USG f the debior>s bi "^ 
a violation of the ^ 9 nStltUte ful1 Wment, and does not negate 



the 

pay one ' S bills in fe nawl 1 P ^^.^ ^ field in which | n . 



s n nawl . 

are archaic; bankrutc h . d f honorab1 ^' ato pris- 



. ' prs- 

^ - AS? 



HOWARD WOOD PRODUCE CO. 1251 

Volume 44> Number 3 

For the foregoing reasons, there is not merit to respondent's 
appeal. However, since respondent's license lapsed prior to the issu- 
ance of the order revoking the license, in order to avoid any issue 
in this respect in the event of an appeal, the order should be 
amended to include a finding that respondent has committed fla- 
grant and repeated violations of the Act, which has the same effect 
on the licensee, and on persons responsibly connected with the li- 
censee, as a license revocation order. In re M, & H. Produce Co., 84 
Agric. Dec. 700, 750-51 (1975), aff'd, 549 F.2d 830 (D.C, Cir,), cerL 
denied, 434 U.S. 920 (1977). 

ORDER 

Respondent's license is revoked. 

Respondent has committed repeated and flagrant violations of 
2(4) of the Perishable Agricultural Commodities Act (7 U.S.C. 
499b(4)). 

The facts and circumstances set forth above shall be published. 
This order shall become effective on the 30th day after service on 
respondent. 



In re: HOWARD WOOD PRODUCE Co., INC, PACA Docket No. 2-0798. 
Decided June 17, 1985, 

Failure to make full payment; failure to pay promptly, llctiiwc revoked Conxctit. 

Edward M. Silverstein, for complainant. 
Thomas Ray, Chattanooga, TN, for respondent. 

Decision by Edward H. McGrail, Administrative Law Judge- 

CONSENT DECISION 

This is a disciplinary proceeding under the Perishable Agricul- 
tural Commodities Act, 1930, as amended (7 U,S.C. 499a et scq.\ 
hereinafter referred to as the "Act"), instituted by a complaint 
filed on April 19, 1985 by the Acting Director, Fruit and Vegetable 
Division, Agricultural Marketing Service, United States Depart- 
ment of Agriculture. 



'In re Hal Merdler Produce, Inc., 37 Agric, Dec. H09, 810 <U)7H); //, ra Allanlie 
Produce Co., 85 Agric, Dec. 1631, 1633, 1G39-40 (1970), aff'd per curiam ( 
Jhed), 668 F.2d 772 (4th Cir.), * c/.mW, 439 U.S. 819 (1978 : 1 L 
Packing Co, 34 Agric. Dec. 1879, 1884-87 (1975); In re M. & 1L Produce Co. 34 
Dec 700, 733-40 (1975), aff'd, 54B P.2d 830 (D.C. Cir.), ccri. /,,* j u 
(1977); A re Marvin Tragask Co., 33 Agric. Dec. 1884, 1887-88, 1K02 1800 IH'J'MWH) 
(1974), aff'd, 624 F.2d 1255, 1258 (5th Cir. 1975). 



'252 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



interstate and fore c m A ' reC61Ved ' and aecepted 

- -= - 



the R U !es of Practce CFR S 8 J TT^ * ^n U38 f 
Order is issued without furl* %*%%& D ^ n a " d 

FINDINGS OF PACT 



^rts 

annua, ]y and was 






5 ; f H the c mpiaint 

1986, Respondent fnedt n^e m^ T 
ers of the agreed mm*L pa y ment Pmptly to 15 sell. 

amount of $394 162 88 fn fi^'^ r f balanees th of, in the total 
modities, purcha d L , ^ f Perishable ^cultural con,- 
eign commerce ' ^ aCC6pted in interatate &" 



CONCLUSIONS 

srr and 

Payment promptly wh respe "' to th ?'' y **?"* ' make f "" 
Findings of Fact L A\ * the tran sactions set forth in 
S aC ' N ' 4 above ' for which the Order below is issued. 

ORDER 

Respondent's license is revoked 

Th,s order shall become effective on June 24, 1985. 



MERRILL FARMS v. TOM LANGE COMPANY, INC, 1253 

Volume 44, Number 3 

REPARATION DECISIONS 

MERRILL FARMS v. TOM LANGE COMPANY, INC. PACA Docket No 2- 
6492. Decided May 15, 1985. 

Suitable shipping condition warranty -Wrongful rejection Damages. 

Thomas R. Oliueri, for complainant. 
Leroy W. Suclgeon, for respondent, 
George S. Whitten, Presiding Officer. 

Decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.}. A 
timely complaint was filed in which complainant seeks an award of 
reparation against respondent in the amount of $12,451.35 in con- 
nection with the sale of four truck lots of lettuce in interstate com- 
merce, 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties, and respondent was served 
with a copy of the complaint. Respondent filed an answer to the 
complaint denying any liability thereunder, and asserting a coun- 
terclaim in the amount of $824.55. Complainant filed a reply to the 
counterclaim denying any liability to respondent. 

Since the amount involved herein does not exceed $15,000, the 
shortened method of procedure provided in section 47,20 of the 
Rules of Practice (7 CFR 47.20) is applicable. Pursuant to this pro- 
cedure the verified pleadings of the parties as well as the Depart- 
ment's report of investigation are considered part of the evidence 
in the case. In addition, the parties were given an opportunity to 
file further evidence in the form of sworn statements. Complainant 
filed an opening statement, and respondent filed an answering 
statement. Both parties filed briefs. 

FINDINGS OF FACT 

1. Complainant, Merrill Farms, is a corporation whose address is 
P.O. Box 659, Salinas, California. At the time of the transactions 
involved herein complainant was licensed under the Act. 

2. Respondent, Tom Lange Company, Inc., is a corporation whose 
address is P.O. Box 4701, Springfield, Illinois. At the time of the 
transactions involved herein, respondent was licensed under the 
Act. 

3. On or about May 5, 1983, complainant sold to respondent, 
under its invoice number 6431, 525 cartons of lettuce, size 24's, at 
$6.00 per carton, plus $.65 per carton for vacuum cooling, or a total 



1254 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

price of $3,491.25, f.o.b., Salinas, California. Contract destination 
was specified as respondent's place of business in Springfield. Ilfi- 

nnic- ' 



nois. 



4 On May 5, 1983, complainant shipped the lettuce covered by 
finding 3 from Salinas, California, to respondent in Springfield, Illi- 
nois, by truck. Respondent diverted the truckload of lettuce to its 
customer, Campisano Fruit Co., in Louisville, Kentucky. The let- 
tuce was accepted after arrival by respondent's customer, and or. 
May 9, 1983 at 8:05 a.m., while stacked in respondent's customer's 
warehouse, the lettuce was federally inspected. The temperature of 
the lettuce was stated to be 38F. to 40F., and the head leaves 
were found to contain an average of 15% decay in the form of Gry 
Mold Rot in various stages, mostly advanced. The wrapper leaves 
were found to have an average of 31% serious damage by decay 

5 On or about May 16, 1983, complainant sold to respondent 
under its invoice number 6611, 675 cartons of lettuce, size 24' 8| it 

of^fiWT^fkP $ ' 65 Per Cart n for vacuum cooling, or a total 
Illinois Cont ct destination was specified as Springfield, 



SS> cora P lainant -hipped the lettuce covered by 

^^ SalinaS ' Calif rnia * to Ptont In 
S 1Pment res P nde nt diverted the truck 
Mayfield Pr duCe Cbmpany. Louisville, 
an Lu s *? T* 1 ** by ^ s Pdent' S customer afto 

leavT^^S^ ^ a tem P erature of T. The bond 
of Gray Mold Rot t an t avera ge f 6% decay in the form 



t 
leaves re staW o 7* ^JT' m stly eai ^ The 



a o 

amount of 16% an d to Lnt maged by Anthra ^e in an average 
by decay fonow an avera ^ f "% serious damage 



ne 

.00 per carton plus $ 6^ ~ ' f f l ns f lettuee > size ' 
Price of $5aG4o' 5 f b Tr.^f 011 / ; CUUm coolin & or a total 
Springfield,' Illinois '^ destina ^as specified as 



r r 

the lettuce to its customer <?- S! ' Res P ndent H'*rtad 

tucky. The lettuc^ ^^'^T t ^ C " in L uis He, Ken- 
was federally inspected o/M^ ^ M^tf ?t Ce f b " si " eSS ' a " d 
was mspected while on the truck and ^f ^^ The lettUCe 

truck, and the temperature was shown 



MERRILL FARMS v. TOM LANGE COMPANY, INC. 125fi 

Volume 44, Number 3 

to be 38F. top and 40 D F. bottom. The head leaves were stated to 
contain an average of 5% damage by Anthracnose, and an average 
of 10% decay in the form of Gray Mold Rot and Bacterial Soft Rot, 
each in various stages, mostly early. The wrapper leaves were 
stated to contain an average of 19% damage by Anthracnose, and 
an average of 8% serious damage by decay. The inspection was re- 
stricted to the product and lading in all layers of the six stacks 
nearest the rear doors. Campisano Fruit Co. rejected the lettuce to 
respondent, and respondent placed the lettuce with Mayfield 
Produce Company in Louisville, Kentucky. Mayfield Produce Com- 
pany sold the lettuce on May 28, 1983, for $4.50 per carton, and de- 
ducted storage and handling chai-ges in the amount of $.75 per 
carton, remitting $3.75 per carton, or a total of $2,238.75 to re- 
spondent. Respondent deducted freight in the amount of $3.00 per 
carton, or $1,791.00, and brokerage in the amount of $.15 per 
carton, or $89.55, remitting a net of $358,20 to complainant. 

9, On or about May 19, 1983, complainant sold to respondent 
under its invoice number 6700, 400 cartons of lettuce, size, 24's, at 
$8.00 per carton, and 400 cartons of lettuce, size 30's, at $5.00 per 
carton, plus $.65 per carton for vacuum cooling, or a total price of 
$5,720.00, f.o.b.. Contract destination was stated to be Springfield, 
Illinois. 

10, On May 19, 1983, complainant shipped the lettuce covered by 
finding 9 to respondent at Springfield, Illinois. The lettuce arrived 
at respondent's place of business, in Springfield, Illinois, and the 
400 cartons of size 24's lettuce were federally inspected on May 24, 
1983, at 3:15 p.m., while stacked on pallets in respondent's cooler. 
The inspection showed the temperature of the product as 38F. and 
the head leaves were stated to contain an average of 19% damage 
by Russet spotting and an average of 17% decay in the form of 
Gray Mold Rot and Bacterial Soft Rot mostly in early, some in ad- 
vanced stages. Respondent paid for the 400 cartons of size 30's let- 
tuce at contract price and turned the 400 cartons of size 24's let- 
tuce over to Humphrey's Market, Springfield, Illinois, to sell. Hum- 
phrey's Market resold 200 cartons of the lettuce for gross proceeds 
of $5.75 per carton on May 25, 175 cartons for gross proceeds of 
$7.25 per carton on May 25, and 25 cartons for gross proceeds of 
$9.25 per caton on May 24, 1983. Freight was deducted in the 
amount of $2.65 per carton, and brokerage in the amount of $.15 
per carton, and net proceeds were remitted to complainant in the 
amount of $1,530.00. 

11, The formal complaint was filed on December 1, 1983, which 
was within nine months after the causes of action herein accrued. 



1256 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

CONCLUSIONS 

Complainant seeks to recover the balance of the total purchase 
price of four partial truckloads of lettuce sold to respondent. Re- 
spondent alleges in defense to complainant's claims that etich of 
the four loads of lettuce was found to be abnormally deteriorated 
on arrival, and that complainant was promptly notified of this fact- 
Also respondent alleges that: 

the complainant acknowledged the breach of contract und 
accepted the rejection and requested the respondent to 
place the merchandise with a receiver for its account. In 
each instance, the receivers advised that they would 
handle the lettuce under the condition and proviso that 
they would have full protection and, since they were not 
set up to handle on consignment, that the receivers would 
not submit accounts of sales with the remittances. This 
procedure and condition was specifically agreed to in each 
instance by Mr. Ken Wolf and/or Bill Gheen [employees of 
complainant]. 

In addition, respondent alleges that: 

when dealing with the Springfield office of Lange, the 
Complainant . . . knew and agreed to the fact that the 
destination of any particular load shipped by Merrill to 
Springfield office of Lange would not necessarily bo 
Springfield, Illinois, but to other destinations, normally 
within a 400 to 550 mile radius of Springfield, Illinois. 

Complainant denied these allegations. 

All of the documentation relative to the four shipments of loUucc 
affirms that the specified contract destination was Springfield, It- 
linos. Respondent had the burden of proving its allegation in 
regard to whether there was a wider area for the agreed contract 
destination, and we conclude that respondent has not mut Ihrit 
burden. The suitable shipping condition rule, applicable in C.o.b, 
sales (see 7 CFR 46.43(i) & (j)) f requires that a commodity Ijo 
placed free on board in suitable shipping condition and defines suit- 
able shipping condition to mean that the commodity, "at time of 
billing, is in a condition which, if the shipment is handled under 
normal transportation service and conditions, will assure delivery 
without abnormal deterioration at the contract destination agree*] 
upon between the parties." We have held in numerous instances 
that the suitable shipping condition warranty is not applicable 
where no destination is specified. See, B&L Produce v, Flwance 
Distributing Co, 37 Agric. Dec. 78 (1978). We have also refused to 



MERRILL FARMS u. TOM LANGE COMPANY, INC. 1267 

Volume 44, Number 3 

apply the warranty where shipment has been to a point substan- 
tially beyond the point specified in the contract of sale. Justice v. 
Eastern Potato Dealers, 30 Agric. Dec. 1352 (1971); Martin v. C. 
Basil Co., 30 Agric. Dec. 836 (1971); and United Packing Co. v. D. L. 
Piazza Co., IS Agric. Dec, 161 (1957). However, where a car was di- 
verted to a point equidistant from shipping point the warranty was 
held to be applicable. Wm. Hedberg, Inc. v. Edison Veg. Growers, 
Inc., 10 Agric. Dec. 1000 (1951). In this case the destination to 
which the first three cars were diverted was not equidistant from 
the original contract destination, but approximately 150 miles 
beyond such destination, using the interstate highway system. This 
distance, however, would account for only a maximum of three 
hours additional transit time, and consequently the condition of 
the lettuce as shown by prompt federal inspections in Louisville, 
Kentucky, is relevant to show the condition which the commodity 
would have had at the original contract destination. See A,R, Let- 
tuce v. Senini, 15 Agric. Dec. 997 (1956); Pacific Coast Fruit v. Na- 
tional Produce Distributors, 14 Agric. Dec. 627 (1955); Corte & Sons 
v. Lerner & Son, 14 Agric. Dec. 320 (1955); and United Packing Co. 
v. Schoenburg, 13 Agric. Dec. 175 (1954). Under such circumstances 
the suitable shipping condition warranty is applicable. 

Considering each of the federal inspections taken in Louisville, 
Kentucky, and also the inspection of the fourth truckload of lettuce 
in Springfield, Illinois, it is evident that all of the lettuce was ab- 
normally deteriorated and, in the case of the three loads diverted 
to Louisville, would have been so deteriorated even had it been 
shipped to the original contract destination. In reaching this con- 
clusion we have considered both the temperatures and the transit 
time as to each truck, and have concluded that such temperatures 
and transit times were normal. 

Respondent has complicated the issues in * proceeding by al- 
leging that each load of lettuce was rejected at destination, and 

tha 



ht uch rejection was accepted by complainant. It is , 
in the case of the first three shipments of lettuce, such 
accepted by the receivers prior to 5 s wa 
on the part of respondent since each of these loaas w 
from the original contract destination See 
addition there were other act. of ^ 
instance, in a letter to the Apartment 
(the contents of which were later -sworn 

Bpondent'B office manager, *^ "^^g, I Contact- 
load that "when I arrived at my o ffi M" ^ ftt g;00 






1258 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

that time because of breach of contract." Thus any communication 
of a rejection by respondent as to this truckload of lettuce must 
have been after 8:00 a.m. However, the inspection shows that tho 
lettuce was in the warehouse of the receiver at 6:05 a.m. on that 
morning. We conclude that as to each of the first three loads of let- 
tuce respondent's communication of a rejection to complainant WIIH 
after acceptance, and therefore wrongful. 

As to the last load of lettuce it appears from the record that such 
load arrived at destination in Springfield, Illinois, on May 28, and 
was promptly reported by the receiver to respondent, and in turn 
by respondent to complainant, to have trouble. At this point it was 
agreed that an inspection should be obtained. Such inspection wim 
obtained the following day at 3:15 p.m. in the warehouse of re- 
spondent's receiver, An additional 400 cartons of size 30's lettuce 
had previously been removed from the truck, and consequently the 
entire load of lettuce had been accepted by respondent. See 7 CKH 
46.43(ii). Accordingly, the subsequent rejection of the 400 curtails 
of size 24's lettuce was also wrongful. We also conclude from nil of 
the evidence that respondent has failed to show that there WLIH any 
acceptance of any of the rejections on the part of complainant;. Set* 
Yokoyama Bros. v. Cal-Veg. Sales, 41 Agric. Dec. 535 (1982) and 
Dew-Gro, Inc. v. First National Supermarkets, Inc., PACA Docket 
No. 2-6145 (Nov. 10, 1983). 

Respondent contends that in the case of each of the shipments of 
lettuce a special agreement was made following its wrongful rejec- 
tion whereby complainant agreed that the lettuce could be ruHokl 
without the necessity that any accounting be rendered. Complain- 
ant has denied this allegation, and we conclude on the basis of otl 
of the evidence that this was not the agreement between the pnr- 
ties. 

Since we have previously concluded that there was a breach of 
contract by complainant in regard to each of the shipments of let- 
tuce, it only remains to be determined whether respondent hay 
demonstrated damages resulting from each breach. The accounting 
data submitted by respondent as to the first two loads of lettuce is 
principally of a second hand nature (i.e. consisting of recaps made 
by respondent rather than actual accountings rendered by May- 
field Produce or Campisano Fruit Co., the firms actually responsi- 
ble lor the reselling of the lettuce) and consequently such clflta 
cannot be used by us as a basis for computing respondent's danv 
ages. As to the second load the file does contain a letter from May- 
field Produce dated June 16, 1983, claiming that 315 cartons of the 
lettuce were sold for $7.00 per carton and 60 cartons of the lolLuc* 
were sold for $6.00 per carton. However, there is no indication in 



MERRILL FARMS v. TOM LANGE COMPANY, INC. 1259 

Volume 44, Number 3 

the letter when these sales took place, and consequently, the letter 
does not qualify as an accounting. Sunkist Growers v. Fiskman 
Produce, 41 Agric. Dec. 137 (1982). Respondent returned a balance 
of $8.75 to complainant on the first load of lettuce. This lettuce had 
an invoice price of $3,491.25, and we conclude that respondent is 
liable to complainant for the balance of such invoice price, or 
$3,482.50, The second load of lettuce contained 300 cartons as to 
which there was no complaint and as to which respondent paid 
complainant the full invoice price, or $2,595.00. However, respond- 
ent remitted only $693.75 on the remaining 375 cartons of lettuce. 
We conclude that respondent is liable to complainant for the re- 
mainder of the invoice price on this lettuce, or $2,235.00. 

As to the third load of lettuce (invoice #6673) respondent sub- 

mitted a letter from Mayfield Produce stating that the entire 597 

cartons were sold on May 28, 1983, to Red Pucket for $4.50 per 

carton. In addition, Mayfield Produce Co., Inc.'s bill of sale to Red 

Pucket was also submitted in evidence. This data is sufficient as a 

reflection of the value of the lettuce received by respondent. The 

Uniform Commercial Code, section 2-714, provides in relevant part 

that the measure of damages for breach of warranty in regard to 

accepted goods is the difference at the time and place of acceptance 

between the value of the goods accepted and the value they would 

have had if they had been as warranted. We will accept the gross 

proceeds of the resale, or $2,686.50, as the value of the lettuce re- 

ceived. With respect to the value which the lettuce would have had 

if it had met contract specifications neither party submitted copies 

of Market News Service reports, and we therefore will accept the 

contract price of $5,164.05, plus freight in the amount of $3-00 per 

carton, or $1,791.00, making a total value at destination, it the 

produce had been as specified, of $6,955.06. The difference between 

these two amounts is $4,258.55. In addition, respondent should be 

allowed as incidental damages the handling charge m the amount 

of $.50 per carton, or $298.50, charged by Mayfielc 1 Produce We 

will not allow the storage charges in the amount of $.25 per carton 

deducted by Mayfield Produce, nor is there any basis for allowing 

the brokerage fee in the amount of $89.55 deducted by W^ 

Respondent's total damages as to this load **^* **fl 

Since respondent accepted this load of lettuce ^fP^^, 1 ^ 11 ^ 

to complainant for the full purchase price thereof, or $6-164^05 less 

its damages in the amount of $4,557.05, or a net ^*^' 

Respondent has already paid complainant $3 58^20 as to this load, 

which leaves a balance still due and owing of $248.80. 



Respondent submitted sale slips from ^ft^J^ 
ing the 400 cartons of lettuce shipped on May 19, which were found 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



to be abnormally deteriorated on arrival. These sale slips show 2M 
cartons sold at $5.75, 175 cartons at $7.25, and 25 cartons nt S!).2.5, 
or gross proceeds in the total amount of $2,650.00. These sales tool 
place on May 24, and May 25, 1983, and we conclude that (hoy re. 
fleet the value of the lettuce actually received by respondent. The 
value the lettuce would have had if it had been as warranted is 
shown by the invoice price for these 400 cartons of lettuce at SO 05 
per earton or $3,460.00, plus freight in the amount of $1,000.00. or 
a tola of H120.00. Subtracting the gross proceeds of $2,050.00 
trom this amount leaves $1,870.00 as respondent's basic damns*,. 
Re pondent also sought to ckim brokerage in ^ gmount 

W ca,. U1 f T' t f ""I' b u 6 all Wed - Since respondent accepted (h. 
10 cm tons of lettuce it became liable to complainant for the full 



ve onde t 1 ' 590 - 00 SS th 

air "dv n^H , c Plamant. Of this amount respondent hn S 

" d otinT 7 m P r nant t $1 ' 530 -. Whi h IeaV6S ? 60 s 

al re)l dy 

on ths MCe 



ft, e 

Action 2 of the Act f " 
complainant with interest 



spondent failed to submit 
Prices alleged 
P'nant, or that 
images for l ost 

v- .&&.. 37 Agric 
ssed. 



this amount is a vio 'n f 
reparation shouid be awarded to 

wa , sbased upon an all ^" f "* 

Shlpments of lettuce. However, 
' hat St had a W the lettuce at 

, f SUCh le " UCe fr0m com ' 
t h f SUch sales ' Accordingly, 

185 (1978) 
10 ua7 



counterclaim should bo dis 



OEDEB 



is 



U paid. 



SYRACUSE & JENKINS PRODUCE u. GEORGE TURKE 1261 

Volume 44, Number 3 

SYRACUSE AND JENKINS PRODUCE Co., INC. v. GEOHGE J, TURKE d/b/ 
a TROPIC KING GROVES a/t/a SILVER PALM GROVES, PACA 
Docket No. 2-6542. Decided May 15, 1985. 

Failure to pny Order. 

Respondent accepted loads of corn and failed to voice a timely complaint, and failed 
to prove any breach of contract on part of complainant. Respondent is liable to com- 
plainant for full purchase price, $10.107.90 with 13% interest from July 1, 1983, 
until paid. 

Complainant, pro se. 

Respondent, pro se, 

George S. Whitten, Presiding Officer. 

Decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDKtt 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.), A 
formal complaint was filed on January 23, 1984, in which complain- 
ant sought reparation in the amount of $4,915.25, alleged to be the 
balance of the purchase price of two shipments of Fresh corn sold to 
respondent and shipped in interstate commerce. On March 12, 
1984, complainant filed an amended complaint seeking reparation 
for the entire invoice price of the two shipments of corn, or 
$10,107.90. The amended complaint alleged that a check given by 
respondent in partial payment had been returned by respondent's 
bank due to the closing of the account. 

A copy of the formal complaint, the amended formal complaint, 
and a copy of the Department's report of investigation were served 
upon respondent. A copy of the report of investigation was also 
served upon complainant. Respondent filed an answer to the 
formal complaint and the amended formal complaint in which it 
was admitted that the check previously given in partial payment 
had not cleared respondent's bank due to the account being closed. 
However, respondent's answer raised defenses to the complaint and 
denied that any amount, above that tendered in the returned 
check, was due and owing to complainant. 

Since the amount involved herein does not exceed $15,000.00, the 
shortened method of procedure provided section 47.20 of the Rules 
of Practice (7 C.F.R. 47.20) is applicable. Under this procedure the 
verified pleadings of the parties are considered a part of the evi- 
dence herein, as is the Department's report of investigation. In ad- 
dition the parties were given the opportunity to file evidence in the 
form of sworn statements, however, neither party did so. Neither 
party filed a brief. 



PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 8 

FINDINGS OF PACT 



censed under the Act k^ res P (le t " It 

^td^^^ soid to ' * ~ 

f.o.b., plu s ice in he amoun T $ 3^ T T^ ? 4 ' G P r """' 
$5,053.95. "mount ot &11M.95, or a total invoice price of 



' on 



destination was WakefernZn harieS Blant n ' The Cmtract 
Jersey. The track arri^ 1 COT Ption in Elizabeth, New 

Jersey and wa 4ct 6 7hv "" M f ^' 1983 ' at Elizabeth ' 
taken to thT^S^,,^ res P"dent's buyer. The truck was then 

Jessup, Ma viand wwTT Mc onne11 & Blankford, Inc., in 
Bruno ' Where " was sold for the account of Frank 



Juno 2, 

yellow conn th C f the reSale of the i' 100 c 

McDonnell A^ " f $6 ' 4L25 ' From this 



toln ' 

$2,090.00, dravaeein T)i ' Subtracted frei ght in the amount of 





the amont o$ 24 95 aniH 

$2,520.55. ' remi ed net proceeds in the amounl of 



trucklo a containinlinn; COmplainant sold to respondent one 
f.o.b. The n rac de i a V r S f o^" Corn at ^' 50 W "* 
in Philadelphia Penn^ f 3 crates to Joh " DiGiacomo 

in New York e " nSylvania ' an<J 800 crates to D'Arrigo Bros, 0,. 

7. On or about Mav 27 IQSQ , 

crates of corn to re SB ond P nV=\ Plamant sllipped the l > m 
York. The corn arrTv^ ftomers in Philadelphia and Now 





1*0 p.m., a eran s " t r a Ut May 81 - 1983 ' 
John DiGiacomo tS^? "I ""f" 3 ' the place of business of 
wire bound crates with 1 ^ f " f yell W kernel sweet corn in 
of the Prod U ct waslhown a 4 T^ marks ' The tem P era ' 
-spection showed the * a > Io ations ' 



dentedkerneb av e 

ge ' damage (live worms 



SYRACUSE & JENKINS PRODUCE v. GEORGE TUHKE 1263 

Volume 44, Number 3 

present) from 4 to 8%, average 6%. Decay from 12 to 20%, 
average 16% Bacterial Soft Rot in various stages including 
13% affecting silks, remainder kernels and/or cobs. 

The corn was stated to fail to grade U.S. No. 1 only on account of 
condition. The 800 crates of corn which went to D'Arrigo Bros, in 
New York were federally inspected on May 31, 1983, at 2:50 p.m. 
while stacked in the receiver's warehouse. Temperatures were 
stated to be 40 to 41F. and condition was noted to be as follows: 

Husks fresh and generally green color. Kernels plump 
and milky. 4 to 10% in most samples, none in many, aver- 
age 5% damage by yellow to brown discoloration of husks. 
4 to 10% in most samples, none in many, average 4% 
decay affecting silks, being slick and slimy. No decay in 
kernels. 

8. John DiGiacomo, Inc., rendered an accounting dated June 7, 
1983, showing gross proceeds for 300 crates of corn as $1,632.50. De- 
ductions were as follows: Inspection $35.00; handling $30.00; and 
commission $228.55, Net Proceeds remitted were $1,338.95. 

9. The D'Arrigo Bros. Co. of New York, Inc., rendered an ac- 
counting showing 800 cartons of corn sold for the account of Silver 
Palm Groves between May 31, and June 6, 1983, for gross proceeds. 
of $3,939.00. Deductions were as follows: freight $1,600.00; terminal 
$12.00; handling $120.00; commission at 15% $590.85; and inspec- 
tion $33,00. Net proceeds were remitted in the amount of $1,583.15, 

10. An ^ informal complaint was filed on August 10, 1983, which 
was within nine months after the causes of action herein accrued. 

CONCLUSIONS 

Complainant alleges that the two loads of corn were sold to re- 
spondent on a f.o.b. basis. The original complaint alleged that the 
contract destination of the sale was respondent's place of business 
in Miami, Florida, However, in the amended complaint complain- 
ant alleges that the corn was to be delivered to respondent's cus- 
tomers in Jessup, Maryland, Philadelphia, Pennsylvania, and New- 
York, New York. We have concluded that the contract destinations 
for^each load were as stated in the findings of fact and that com- 
plainant was aware of such destinations at time of shipment. 

Respondent contends that it acted as a broker relative to the two 
loads of corn and was not the purchaser thereof. However, a 
number of considerations have led us to the conclusion that re- 
spondent did purchase the corn. First, complainant's invoices show 
respondent as purchaser of both loads. There is nothing in the 
record to indicate that respondent ever objected to these invoices in 



1264 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



, alth Ugh res P nd *t "aims to have been 
con f th6 tW C rn tauwctionB, the record nowhere 

contains copra, of any broker's memorandums of sale Thir 1 tl c 

he fir t load T * "", trUCk ""*" F k B '* 
" 



e r oa , 

"Silver Pa m r "SV* * that SUch co was Deceived from 

there is no documentary evidence which indicates to the contrary 



murcated anvT '" ? ^ *" Sh W that 
re 



cum- 



dude th 

6n Ced b th loads of 



- 
reJ6Ctl n * ""Pkfoant We therefore con- 




Uable to S 6n , f C ?u ed b th loads of com and th ^ b~m 

data* s ewT " "l 1 PUrChaSe Price thereof ' lcs3 "V 
damages resultmg from any breach of contract proven by respond. 



nnr t C mplaint r ^P""dent contends thai 

that t, " , C r traCt in several res P ecte ' Reapondenl 

s NO I c r f r r" an u - s - N - i **> ^ ^ > 

New York wa ' * th V? d f Corn destined for Philadelphia n,ul 

6 " May 28 ' 1983 ' but di(l " l 



ocn contention that the contract called far 

the co rn SO C L W n w' 11 ?' n ne f the d ntation relative lo 
for no a S d e corn ^ ^^ * hat the C0ntract C " 11 " 1 



the time f 
alleges that the loads re not 



on 
arrival was Mav l 1?M i ^ ad ' res P ndent alle S^ that the 

' ' 8 ' 1983 ' and 



Blankford in C T ^ delivered to McDonnell and 



REGENCY PACKING y. TOMATO OF VA 1265 

Volume 44, Number 3 

there was any breach of contract relative to this load of corn. 0. D. 
Huffi Jr. Inc. v. Pagano & Sons, 21 Agric. Dec. 385 (1962). As to the 
second load of corn there were two federal inspections. The inspec- 
tion applicable to the 800 cartons of corn handled by D'Arrigo Bros, 
in New York shows that, considering the time in transit this corn 
met the terms of the contract. The inspection of the corn in Phila- 
delphia covers only 125 out of 300 crates of corn, and in addition 
such inspection took place in the receiver's warehouse, and there 
were no distinguishing marks on the crates which would have 
maintained the identity of the corn. In addition such inspection 
shows temperatures of 47 to 48, which is too high for corn. Al- 
though respondent contended that there was a failure on the part 
of the complainant to place ice on some of the corn, this contention 
is obviously related to the load of corn shipped on the 26th, and has 
no reference to the load shipped on the 27th, Consequently, the 
temperatures disclosed by the inspection in Philadelphia must be 
taken as indicative of abnormal transportation services and condi- 
tions which would void the warranty of suitable shipping condition 
as to such corn. See Dave Walsh v. Rozak's, 39 Agric. Dec. 281 
(1980). 

In summary, we conclude that respondent purchased the two 
loads of corn and accepted such loads at destination by failing to 
communicate any timely rejection to complainant, and has failed to 
prove any breach of contract on the part of complainant. Accord- 
ingly, respondent is liable to complainant for the full purchase 
price of the two loads of corn, or $10,107.90, none of which has been 
paid. Respondent's failure to pay complainant such amount is a 
violation of section 2 of the Act for which reparation should be 
awarded to complainant with interest. 

ORDER 

Within 30 days from the date of this order, respondent shall pay 
to complainant, $10,107.90, with interest thereon at the rate of 13 
percent per annum from July 1, 1983, until paid. 



REGENCY PACKING COMPANY, INC. v. GRAYSON E. LEWIS d/b/a 
TOMATO OF VA, PACA Docket No. 2-6601, Decided May 15, 
1985. 

Respondent failed to pay for produce delivered by complainant and claimed not to 
be personally responsible for the debt since the transaction took place between com- 
plainant and a corporation. Respondent's licensing indicates that he is in fact doing 
business as an individual for a corporation and is therefore personally liable for the 



1266 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



l pat/ ' S ' hi " reSP " dent Sha " Pay $15 ' MMO flt 13% "** from Fob. 1, 



Complainant, pro se. 

John C. Baker, Esquire, Surrey, VA, for respondent, 

Edward M, Silverstein, Presiding Officer, 
Decision by Donald A. Campbell, Judicial Officer. 
DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.l A 



. 

* u Whidl com P^nt seeks reparation 

agamst respondent m the amount of $15,640.00 in connection with 

nlZ Sa Ctlon \ m ' nterstate Commerce involving the shipment of 
tomatoes, a perishable agricultural commodity 

f the ; ep rt f investi S atio was served upon each of the 
' f the 



plainant r ere enyng any liabilit ^ to 



,, - are considered a Pt of *e evl 

add tn ,t C8Se ; ^ 1S ^ De P artmen ^ ^Port of investigation. In 
avid Sin If T 6 ? hen the PPrtunity to submit further 
submhwl f T f / erifled state ^. however, neither party 
submrtted any such statement. Respondent filed a brief. 

FINDINGS OF FACT 



whose nCy 1r , a o Cng ompa "y' Inc - is a corporation 
whose mmlmg address 1230 Immokalee Road, Naples, Florida 



l f i 

504 ca rto n s e * m ^ "uckload f tomatoes aa 
per carton r^^nnm , oo? 6 ' U ' S ' mmb ^ion grade, at $6.00 
tion grade at nX "* ^ T' " 8 ' 6 X6 ' lar ^' U ' S - ^bina- 

f rt n (2 ' 808 ' 00) ' plus 15 oents P er ^ton 
), for a total agreed f.o.b. price of $5,544.00. 



REGENCY PACKING v. TOMATO OF VA 1267 

Volume 44, Number 3 

4. On January 4, 1984, in the course of interstate commerce, com- 
plainant sold to the respondent one truckload of tomatoes as fol- 
lows: 648 cartons, 5 XG, large, Regal Brand, at $9.00 per carton 
(35,832), 648 cartons, 6 X6, Regal Brand, at $8.00 per carton 
($5,184.00), 144 cartons, 6 X7, Regal Brand, at $6.00 per carton 
(S8G4.0G), plus 15 cents per carton for palletizing ($216.00), for a 
total agreed f.o.b. price of $12,096.00. 

5. On December 19, 1983, and January 4, 1984, the complainant 
shipped from loading points in Florida to respondent in Virginia 
the subject loads of tomatoes. Upon receipt thereof the respondent 

accepted them. 

6. The formal complaint was filed on June 7, 1984, which was 
within nine months after the causes of action herein accrued. 

CONCLUSIONS 

The sole dispositive issue in this case is whether the respondent, 
as an individual, made the purchases as alleged by the complain- 
ant. Respondent claims that he never purchased any tomatoes irom 
the complainant as an individual doing business as Tomato of VA. 
Rather, he claims that the purchases were made by a corporation, 
Tomato of VA, Inc. However, the Department's license records re- 
flect that he was licensed as an individual doing business as 
Tomato of VA,* and that no corporation named Tomato ot VA, 
Inc., was licensed to do business under the Act at the relevant 
time. Thus, there is no evidence in this record that any such Corpo- 
ration existed and was doing business under the Act at the time or 
the transactions. In view of the above, we hold the complainant has 
satisfied its burden of proving that the t* ctlons * ^ 
it and the respondent. The respondent's acceptance o ft he tomatoes 
and his failure to pay the complainant the amount of $15^00 ^ s 
a violation of section 2 of the Act for which reparation plus interest 

should be awarded. , . iwpd 

In his answer, the respondent raises an issue as to the allege* 
poor condition in which he received the tomatoes. However he has 
not provided any evidence, such as an ^^^^^ 
which to prove that the tomatoes were in the <^^ 
his answer. He has, therefore, failed to prove that the tomatoes 
were damaged when he received them. 

That the complainant in filing its complaint used the name Tomatoes of Virgin- 
ia seems an insignificant difference. 



1268 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

ORDER 

Within thirty days from the date of this order, respondent shall 
pay complainant $15,640.00, as reparation, with interest thereon at 
the rate of 13 percent per annum from February 1, 1984, until 
paid. 



JOHN K. HARMON d/b/a HARMON COMPANY PRODUCE v. A, LEW 
DIST. Co., INC., PACA Docket No. 2-6648. Decided May 15, 



Failure to payDecision. 

Complainant sold lettuce to respondent on an FOB basis. Respondent then sold this 
lettuce on consignment to another vendor, and did not pay complainant the differ- 
ence between the two prices. Complainant alleged that the respondent had no con- 
signment agreement, but was unable to provide evidence that would prove this, Re- 
spondent was ordered to pay complainant $190.22 with interest of 13% per annum 
from Feb. 1, 1984. 

Complainant, pro se. 
Respondent, pro se. 

A. Stanton, Presiding Officer, 
Decision by Donald A. Campbell, Judicial Officer. 
DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 USC 499a et se?.). A 
timely complaint was filed in which complainant seeks a repara- 
tion award against respondent in the amount of $6,010.00 in con- 
nection with a shipment of lettuce in interstate and foreign com- 
merce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties. A copy of the formal com- 
plaint was served upon respondent, which filed an answer thereto, 
denying liability. 

Since the amount claimed as damages does not exceed $16,000,00, 
the shortened procedure provided in section 47.20 of the Rules of 
Practice (7 CFR 47.20) is applicable. Pursuant to such procedure, 
the report of investigation is considered to be part of the evidence. 
as are the verified complaint and answer. The parties were given 
an opportunity to submit additional evidence in the form of veri- 
fied statements and to file briefs, but elected not to do so 



HARMON COMPANY PRODUCE . A. LEVY DIST. CO. 1269 

Volume 44, Number 3 

FINDINGS OF FACT 

1. Complainant, John K. Harmon d/b/a Harmor .Company 
Produce, is an individual whose address is 3821 E. Bronco irau, 



Phoenix, Arizona. , , rt 

2. Respondent, A. Levy Dist. Co., Inc., is a cor P. ora ^". w !* ; 
dress is 1659 W. Shaw Avenue, Fresno, California. At the ^time : o 
the transaction involved herein, respondent was licensed under the 

A ton November 29, 1983, complainant sold to j^ 'J^ 
livery to B&G Vetere Wholesale Ltd., Toronto, Ontai.o Canada 
(hereinafter, "B&G Vetere"), 850 cartons of lettuce tor . LUU P 
carton plus $595.00 cooling, $31.00 for a shipping point .mspecbon, 
and $22.50 for a recording instrument, for a total o *b,M8.ou, i.o. . 
4. On November 30, 1983, complainant prepared an invoice - 
fleeting the information set forth in Finding of Fact 3 above but 
stating that B&G Vetere was the buyer The invoice P> >' e ** 
eluded a $42.50 charge for respondent's brokeraBeCornp^nan 
sent this invoice to B&G Vetere. Respondent cf> cted '" 
ant's salesman, Bob Ewing, and told him that the ^' ce j a 
error, as respondent had purchased the lettuce. Respondent 
Mr. Ewing that B&G Vetere was returning the invoice. 

5. Complainant had the lettuce federal y Wg*** ^o 
point on November 29, 1983, where it was found to be 85% Ob-wo 
1 quality. Complainant then shipped the lettuce er 19gg ' 
and it arrived sometime during the first week ' 

6. Upon arrival of the lettuce, respondent s pres, ^ ^ 
Levy, contacted complainant's salesman, M r Ewing,^ 

that there were condition problems with the ' ^^ 
thorized respondent to handle the lettuce on con inBpec ted 

7. On December 6, 1983, B&G Vetere had the lettuo a m P 
by the Canadian Department of Agriculture. It found as 
relevant part: 

WHERE INSPECTED In applicant's whse 
NO. AND KIND OF PKGS. 850 ctns. 
* 

PRODUCT (TOP) 3C OUTBIDS TC WAREHOUSED *C. 

CONDITION OF VEHICLE, LOAD, PKGS. A m 

Produce piled various rows and layers on A*. 

tainers in good order. 



1270 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

CONDITION Decay affecting 1 to 3 head leaves average 
12% range ml to 25%. Crushed midribs affecting from 8 to 
most y 3 to 4 head leaves average 23% range 8% to 50% 
generally accompanied by reddish-brown discoloration. 
Yellow to brown discoloration affecting 3 to 4 head leave* 
average 18% range 4% to 25%. Damage from tipburn av- 

Z! t rf^V 17% ' CrUshed heads *rase 5% 
range ml to 17%. Inspect injury affecting 3 to 4 bead 
leaves average 5% range nil to 21%. 



eren f Ie " UCe to B&G Vetere. which ron- 

count of I 7 IeS t0 , reSP ndent dated January 8, 1984. The 

account of sales reads, in relevant part, as follows: 

SALES CDN 

~ LETTUOK 

120 at 7.00 

60 at 6.50 840.00 

162 at 6.00 " 3DO.OO 

50 at 5.50 ~ fl72.00 

299 at 5.00 ^Tfi.OO 

117 at 4.00 ~ 1,^5.00 

42 dumped 488.00 

850 crtns ---- ..... - ~-~* 

$4,44^.00 
EXPENSES 

Freight at 26% exchange 

Inspection 2,891.70 

Customs 11.10 

Market Entry ~ 9.0O 

Commission at 12.5% 17-fiO 



,. 

Total Sales CDN 

Less Expenses CDN ~ 4,440.00 

Net Return CDN _ 3,484,30 

J^ss U.S. Exchange at 26% 9 *>&.70 

Net Return U.S. 197.20 

758.60 

". On February fi 1 QSA 

Bowing that resale of 't mmna ^ atatemont 

W58.50. F 



ae o theo on 

W58.50. From this, respondent , ; ar 'T S , f lettuce had brought 
total of $631 .oo in nT ce ^ $27 ' 5 for ^^i^lon, for 



J r 8 - > w 

alleged cause of action herein 



HARMON COMI'ANY J'HODUCK v. A. I.KVY D1ST. CO, 1271 

Volume -I'l, Numlx 1 !' !) 

CONCLUSIONS 

Complainant alleges Hint respondent m liable an a broker for the 
difference between the contract price of $(i,(M1.0() for H50 cartons of 
lettuce which coniplainanf Hold to B&G Votore Wholesale Ltd., To- 
ronto, Ontario, Canada (hereinafter "B&G Votero"), and the 
$631.00 paid complainant by H&< Votore through respondent, or 
$6,010.00. Complainant claims that respondent acted without its 
permission in billing !*&< Votero and authorizing the Canadian 
firm to handle the lettuce on consignment. Respondent denies li- 
ability, insisting that it bought the lettuce from complainant for 
shipment to 1J&G Vetere. Respondent contends further that it re- 
ceived specific authorisation from complainant to handle the let- 
tuce on consignment when it arrived in poor condition. 

The first question to bo decided !H whether respondent was the 
brokor in the Halo of the loffueo from complainant to B&G Vctoro, 
as complainant allegi-H, or actually bought the lettuce from com- 
plainant with nhipment to be made to B&U Votoro, an claimed by 
respondent. Complainant, an the moving party herein, nan the 
burden of proving the contract terms, respondent's breach thereof, 
and tho resulting damages by a preponderance of the evidence. 
New York Pitxhmc Tnufo. Attmiritttion, Inc. v. Sidney Sandier, !J2 
Agric. Doc. 702 (li)7;i). The only evidence identifying respondent us 
the broker is complaimuil/H invoice, which shows B&G Vetore as 
the buyer and inolud(H a $<l!i.riO charge for "Urokemge Art Levy". 
Respondent claims in its Hworn answer that it called this error in 
billing to the attention of coniphiimmt'H Hulosman, Bob Kwing, and 
told Mr. Kwing thai B&G Vetere was forwarding the invoice to re- 
spondent. The evidence dot'M not contain a statement by Mr. Ewing 
disputing respondent's allegationM. It is also significant that a bro- 
ker's confirmation of wdu WIIH never innuod by respondent. Based 
on these factors, wo conclude (hut complainant has failed to sus- 
tain its burden of proving that respondent was tho broker, and we 
find that respondent purchased tho lettuce from complainant with 
shipment to BG Voloro. 

The next issue concerns respondent's allegation that complainant 
authorised n change in tho contract terms from an f.o.b. sale to a 
consignment. Respondent has tho burden of proving such allegation 
by a preponderance of the evidence. American Banana Co., Inc. v, 
Marvin Gray, 41 Agric. Dec. fiM (10H2). In respondent's sworn 
answer its proHidont, Arthur Levy, alleges that complainant was in- 
formed that oithor respondent would submit an account of sales, or 
complainant could divert tho load elsewhere, and asserts that com- 
plainant agreed to an account of sales. In a March 19, 1984, letter 
to the Department, Mr. Levy states that the lettuce was inspected 



1272 



AO Lc 

Volume 44, Number 3 



upon arrival at R,? n \r 
M, lev" Pril 10 ' 1984 ' onpla nanT' r"' date " >> * 









r $955n 
el 



the e t aCC6pt 
" fe 



were 



f $5G5 ' 0() ' 



account of , 

les ' 



market enf" A ^- De c 5 5 
the tra ns a,tf ?' Since su <* fees 
ent and co IT between ^Pond 
Wing $277n Pama , nt ' Ther efore ^ 
lo wd coir.* 20 ' 22 United s 

*>' brokerage P I amant ' s in * '" 

le uce r, have c 

is 



Pay 



. and 



---?. rate of 
for the deduction 
of the cost of ob- 
J, fnc. v, A, Affi- 
and the custom flntf 
in connection with 

\T , 

vetei'e, not roiapond' 
Jons of B&G Vetero lo- 
t's, will not bo fil- 
s subtractd $42.50 
re spondent bougJit tlio 
fee. 
dc- 
$190.22. 



innnf (.1 -"w.i wi <pj.yu.^ji, ltC H 

s amount is a violation of 



P-R FARMS SALES u WEST COAST PRODUCE SALES 1273 

Volume 44, Number 3 

section 2 of the Act, for which reparation should be awarded, with 

interest. 



ORDER 



Within thirty (30) days from the date of this order, respondent 
shall pay to complainant, as reparation, $190.22, with interest 
thereon at the rate of 13% per annum from February 1, 1984, until 
paid. 



P-R FARMS SALES AND EXPORT, INC. u. WEST COAST FJIODUCK SAI.KH 
INC., PACA Docket No. 2-6763. Decided May IB, 1985, 

Failure to pay Order. 

Decision by Donald A. Campbell, Judicial Officer. 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 49a ct set/.). A 
timely complaint was filed in which complainant seeks n Vopara- 
tion award against respondent in the amount of $3,987.50 in con- 
nection with a shipment of mixed fruit in interstate commerce A 
copy of the formal complaint was served upon respondent, which 
filed an answer thereto, admitting the material allegations of tho 
complaint, including the indebtedness claimed by complainant Ac- 
cording y, the issuance of an order without further procedure in an- 

nr/vrvt 1 ! a fa r\ti tin 11*14-1 4- 4-^ *L* _ . j^-i t-^s +\ * , * 

ol the Rules of Practice (7 



Complainant, P-R Farms Sales and Export, Inc. is a corporation 
whose mailing address is 2917 East Shepherd Avenue Clovis On It 
fornia 93612. Respondent, West Coast Produce sZ Inc. T^o ! 



' 

nm SdtfS. At the time of the transaction involved herein 
ent was licensed under the Act. nerem, 

The facte alleged in the formal complaint aro hereby adopted nt 
aCt thi8 rder * n the " 



H , , - c we co 

elude that the actions of respondent are in violation of 



n voaon of aectn 2 r 

' 



a o, n 

ant of $3,9o7.50. Accor, within 30 days from the date of thin 



o 

S^7.n eSP ^ dent , 8h f u W t0 ^^nant, a a ro purn 
^,937.50, with interest thereon at tho mf* n r iu l ^ I/mu 

annum from October 1, 1984, unlil paid f " 1>erCO1>t 



1274 

COMMODITIES A(T 

Volume 44, Number 3 

0. P. 



V 

T^ i ~" "^ fJJ -"-'HJ I*T fl / h /Q Pm "" * VJVJpl J t 

Docket No. 2-677n W "J , f ^ MERS ON ELLIOTT PIKHHHT r^n 

" * O( (U, IJeniHwrl AiT^.. t/. -.^ ''"'U(1,, J rlL. 1 , 

Allure to pay-Order. 
Decisio. 



^^ ""^ the Perish <' **,, 
! m *ly co m pl aint W a s fi ed in a T en , ded " U ' S ' C - " ! ' ' " 
to* '.award against responded fu COm P lai ^"* .k, r^r 
neofaon with a shjp^^" 4 ln amount of W ,4.no !' 

^ of the formal ^pLin? " 13 ' 068 '" interstato >''"' 
fll ^ an answer the ** S6rved u P n re s on<l,, l 



,. 

of the formal pin " 13 ' 068 '" interstato >''"' 
an answer theret7l7 ** S6rved u P n re s pon<l,, lt 
complaint, including i '^f the , material """ 
dmgly, ^ issua of ' a ndebtedn ^ claimed by complain,,,,,. A 

war * 

Complainant O P 

-urph p Q| nc _ , s n 



Hot, ' rnia 93 

whot ? indi dual doine C' Res Pondent, Enww II 

It heT ailing addre ^ ^ P g b B " Emerson BUiott 1W U; , 
f the transaction^ { 45 ' Ca ^elberry, Florida m. 
the Act ' er6i "' res P*"' " & 



&?P^K r P J aint are hereb ^ *P^ 

~~ 



SARATOGA DISTRIBUTORS u. BRICE BROTHERS, INC. 1275 

Volume 44, Number 8 

SARATOGA DISTRIBUTORS v, BRICE BROTHERS, INC., PACA Docket No. 
2-6499. Decided May 16, 1985. 

Failure to pay Decision. 

Complainant, pro se. 
Respondent, pro se. 

George S. Whitten, Presiding Officer, 

Decision by Donald A. Campbell, Judicial Officer. 

This a reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C, 499a et seq.l A 
timely complaint was filed in which complainant seeks an award of 
reparation against respondent in connection with five shipments of 
mixed produce in interstate commerce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties, A copy of the formal com- 
plaint was served upon respondent which filed an answer thereto 
denying liability to complainant in connection with four of the 
shipments of mixed produce. 

The amount claimed in the formal complaint does not exceed 
$15,000.00. Therefore, the shortened procedure provided in section 
47.20 of the Rules of Practice (7 CFR 47.20) is applicable. Under 
this procedure, the verified pleadings of the parties are considered 
a part of the evidence herein, as is the Department's report of in- 
vestigation. In addition, the parties were given the opportunity to 
file evidence in the form of sworn statements. Complainant filed an 
opening statement, respondent filed an answering statement, and 
complainant filed a statement in reply. Neither party filed a brief. 

FINDINGS OF PACT 

1. Complainant is a partnership composed of Tommy M. Brown 
and Timothy X. Colin, doing business as Saratoga Distributors, 
whose address is P.O. Box 2836, Saratoga, California. 

2. Respondent, Brice Bros,, Inc., is a corporation whose address is 
Golden Gate Produce Terminal, 131 Terminal Court, Building 40E- 
40D, South San Francisco, California. At the time of the transac- 
tions involved herein respondent was licensed under the Act. 

3. On or about March 3, 1983, complainant sold to respondent 90 
cartons of cherry tomatoes at $13.45 per carton, or $1,210.50, on a 
delivered basis. 

4. On or about March 3, 1983, complainant shipped the 90 car- 
tons of cherry tomatoes mentioned above from loading point in Ari- 
zona to respondent in South San Francisco, California. The toma- 
toes were accepted by respondent on arrival, and respondent has 



1276 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



5. On or about March 29 itV , Unt m tMs P""""! 
66 flats of 5x5 tomatoes a '/I 7S C mp a ' n f nt s ld * respon 
ered. "matoes at $11.75, or a total price of $776.60 del jr 

shipped 



~ p d anant . sipped the "* 

spondent in South San Prancisco i 1 / ?'"' in A '"" " rfr 
on arrival and complainant S ?H eSP " den * acce P ted u > P*" 
ment of $1.00 P er7ack a l f! [ es P nden t agreed to nn adjust 

complainant $49170 ^7^ ^T Res P nd ^ I U 
$217.80. ' avmg a balance ^e to compliant o! 



c 

carton delivered and L ODa 7 1T 3 Cantalou P es at $23.50 , 
at a delivered price P * (8 " Cart ns) of size 24 cnnUta^ 

8. On or about Anril s IQQO , . 

Point in Ari Z o na to rasp nLn I'inZT^ v^ ^ ' di " 
three pallets of size 30 nit i h San Franc isco, Cnliforni., 





on , 

spondent for all of tho Pm=i ' com P la 'nant invoiced re - 

Respondent 1^ cSEt^ oof'^ r * ^ f $Wfll ' 
15, 1983. Federal-StZ M^ f M r the canta 'o"Pos n June 

wholesale mX rePO '' tS Sa " F *" lc " 



h 

ing for $31.00 to $33 00 ' on ' Sh W Slze 24 cantaloupes sell- 

$31.00. * 3 '' and Slze 80 cantaloupes selling for $27.M lo 

&. On or about Aoril ic; IQQO , . 

flats of 5 X5 tomSop, ,'t 3 ' c m P lainant sold to respondent ffl 

W1.V5; 216 hi o6y fi f $ '^ 198 flats f 5 x6 to '^' 
toes a $7.4?^ 32 w r l7 at e / at $13 ' 95 '' 90 flat of cherry ton* 
a total price W"****" f S ^ uash at WWft or 



10. On or about Auril It IQCQ i - 

point in Arizona to relUL > C T Plamant ship P ed from loillii "B 
the mixed produce cov^H T S ^ )Uth San Fra ^co, California, 
cepted this produ e on T ^ !, mding f Fact 9 ' BPtont 
PrCe 



ant ,. s u . 

owingfrom respondent fn , , 6 remams a balance duo ^ 
11 On nr h f , com Plamant of $2,027.60. 
- 11 - un or about Aoril 2T IQBQ ,. i . 

wire bound carton, nf J u ' c om P Ialn ant sold to respondent 72 

at $13.75; W/flTo f s S7v6 $13 f '' 66 ^ f 6 X tomntes 
se 6 X6 tomatoes at ? Tf*?* at $13 ' 75 ! and 1( >8 "Wrf 

12. On or about Apri a l^^ ' f $M15 ' 8 <WivBwd - 
Point in Arizona to respondent ' m P u'^"' shipped from Ioaditl S 
the mixed produce covered h v r ^ Francisco, Cnliftnh 

covered by Fmdmg of Fact 11. Respondent M- 



SARATOGA DISTRIBUTORS y. BRICE BROTHERS, INC. 1277 

Volume 44, Number 3 

cepted the produce upon arrival at destination, and on April 25, 
1983, at 11:00 a.m., the tomatoes were subjected to federal inspec- 
tion. Such inspection showed that the 5 X6 tomatoes contained 
grade defects ranging from 4 to 22%, average 14% damage by sun 
scald, misshapen, scars and insect damage, including 2% serious 
damage, and such tomatoes were stated to have the following con- 
dition: "Average approximately 10% green and breaking, 50% 
turning and pink, 35% light red and red. Average 1% soft. Decay 
average 2%, Bacterial Soft Rot in initial stages." The size 6 X 6 to- 
matoes were stated to have grade defects ranging from 14 to 18%, 
average 16% damage by sun scald, misshapen, scars and insect 
damage, including 2% serious damage. Such tomatoes were stated 
to have the following condition: "average approximately 80<% light 
red and red. Range from 10 to 12%, average 11% soft. Average 2% 
damage by bruising scattered throughout the pack. Decay ranges 
from 6 to 8%, average 7% Bacterial Soft Rot, mostly initial, many 
in advanced stages." Complainant and respondent agreed to an ad- 
justed price of $3.00 per carton for the squash, $11.75 for the size 5 
X6 tomatoes, and $10.95 for the 6 x6 tomatoes. The total adjusted 
price was $4,524.60. Of this amount respondent has paid complain- 
ant $1,860.00, leaving a balance due of $2,664.60. 

13. The formal complainant was filed on November 7, 1983, 
which was within nine months after the causes of action herein ac- 
crued. 

CONCLUSIONS 

Complainant seeks to recover the balance of the purchase price 
or adjusted purchase price for five loads of perishable produce. Re- 
spondent claims that the amounts which it has already paid consti- 
tute the full amounts which are owed to complainant. As to some 
of the produce respondent has claimed that complainant authorized 
respondent to handle such produce on a consignment basis. Howev- 
er, respondent did not submit an accounting as to any of such 
produce, and we find that the parties did not agree to any of the 
produce being handled on a consignment basis. As to other portions 
of the produce respondent claims that adjustments in price were 
made after arrival which resulted in lesser amounts being due 
than claimed by complainant. As to all of the produce covered by 
Findings of Fact 5 through 12, respondent did not make any writ- 
ten objection to complainant's prompt invoices until June 15, 1983, 
when respondent tendered its partial payment. We have found that 
such adjustments as were made were in the amounts claimed by 
complainant. As to the remaining items there were no adjustments, 
and respondent is therefore liable for the original contract price. 



1278 



PERISHABLE AGRICULTURAL COMMODITIES 
Volume 44, Number S 



As to the cherry tomatoes covered by Findings of Foci 3 or.t 

complainant has claimed a balance due of $873.fiO. Ite* 

made no reply in its answer to this claim by complninnnt. Ac; 

ngly, we have found that complainant is due the Ml 

Claimed as to these cherry tomatoes. 

pallet 6 7 a tal T S ?i PPed " Apri ' 8 ' 1983 ' we '' e * 
actua lv I "2 ^ d tW Pall6tS f Si2e 24 ' Howove,-, 
have fo^T? 1 PaHetS f SiZ6 3 ">taloupc. 

s neve rf t ^ ^ ": ""*''* agreement .s (. 

reS dSnt h tho 



on April 11 

ie 4 
to 



re D n f 
PS 



at 

of the ^ d 

b<3en a 
Frandsco 



' "P<"nU. Mt > 
f underaiz ^ ""ton. in Ik 



P'ainant due to 
t failed to 



which owing (o cw 



baW 



the size 30 melon 
t award complaint 
indent's damage^ 
*e three pallets 
52,709.00. Resp^de 
amount, which leaves 
T1 "*e remains due 

f >- all of the produce the 
" to pay compl ain ; n t t 

Act for which reparatl 7 ^, 
interest. re P arat ion should 

ORDER 



" 



price of tho 

res P nde "* ** *ho W mi> N l 
WS HaVe " nitel '"ti hi 

actua "y ch ^ d ' 
Res P^nt's total liabilit, 

he $252 ' in dnnl 
om P^-^nt $700.00 of thii 

f * 2 ' 004 -00- 

res P nde nt to eampl.ln.Bt 
W.28Y.50. Respondenfa ft,!- 

f 3 Vi ]ation of aecti n 2 '< 
b e awarded to complainar.t 



HARRY BUSHMAN v. AUSTIN A. CLAYPOOL 127S) 

Volume 44, Number 3 

HARRY BUSHMAN, INC., v. AUSTIN A. CLAYPOOL d/b/a AUSTIN CLAY- 
POOL, PACA Docket No, 2-6665. Decided May 16, 1985. 

Breach of warranty; failure to pay. 

Complainant, prase. 
Respondent, pro se. 

Dennis Becker, Presiding Officer, 

Decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). A 
timely complaint was filed in which complainant seeks an award of 
reparation against respondent in the amount of $2,852.60 in con- 
nection with the sale of a truckload of potatoes in interstate com- 
merce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties. A copy of the formal com- 
plaint was served upon respondent. Respondent filed an unsworn 
answer thereto denying liability to complainant. Since the amount 
claimed as damages in the formal complaint does not exceed 
$15,000, the shortened method of procedure provided in section 
47.20 of the Rules of Practice (7 CFR 4Y.20) is applicable. Pursu- 
ant to this procedure complainant filed an unsworn opening state- 
ment. Respondent did not file any further documents. Neither 
party filed a brief. 

FINDINGS OF FACT 

1. Complainant, Harry Bushman, Inc., is a corporation with an 
address at P.O. Box 5, Rosholt, Wisconsin. 

2. Respondent, Austin A. Claypool is an individual doing business 
as Austin Claypool, with an address at 59 West Archer Avenue 
Marshall, Illinois. At the time of the transaction involved herein 
respondent was subject to license under the Act. 

3. On April 19, 1984, complainant sold to respondent a truckload 
of potatoes at $5.50 per hundred weight, f.o.b. There were 44 000 

T^fr^l 068 ? . the trUCk> resulti "S in a total contract price 
of 52,420.00. The potatoes were shipped from complainant to re- 
spondent in interstate commerce on or about April 19, 1984 and 
were received and accepted sometime thereafter by respondent 
Complainant subsequently gave respondent a credit of $67 50 for 

the total contract 



1280 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



o .0 to Mm . 

ment on it. ' 0m P la t could cash the check stopped pay. 



" *iiuiibiia I rn m tnei 4-; j_i ^^^ 

crued. m the tlme the cause of action herein ac- 

DISCUSSION 



load 

burden of p roo f o, r 2^" * * 

because the potatoes d d ? h W that " sufferetl 

a breach of w ar r anty on 1 T,'" g d C ndition as a ""tf 

touting Co. v Z7 P' , Pm '' f c om P ]a a nt. Becky ford D is - 

spondent has faifeT/o 1 1% " ^ ^ De ' 93 (1970) - 



the answer which it flM Tu reSP ndent dM not 

hWaS the nly 



filed in this proceedin /, WaS the nly d "ent a tio n 
statements that theS f ? Vldentlar y va 'e can be given its 
event, even if * ^ 3 Jf a "d i" Por condition. I,, m 

must prove its damages as frln T* W3S the Case ' P 
"tins Company v.Tfc If f f P. " oondition ' ~ ^' 
902 0978. Respondent ts fa fed to^l^'f "^^ 81 AgriC ' 
eral inspection certificate tc ^ ^ 8S n ' pr vided aM 

toes on arrival. Further!,* ^ 6 , eXaCt Condition of the P" 1 ^ 
document which purported ^t g " SUbmHted a ha " d ^''"' 
ment canno t be ? P "*? ^ ' be account of sales, such docu- 

provide proper verin C a nt y 7 alUe beCaUSe of the failure *> 



view of ne 

find that respondent olV, arry its burden of 
the transaction " I leTn tl , 0mPlainant $2 ' 352 ' 50 with 
Plainant such amount s ^r? 8 ' Ita feilure to 



s 

for which reparation shonW? SeCti n 2 f the Act which 

est at,on should be awarded to complainant with inter- 

ORDER 

to ^Plainan sha " 



HOWELL'S FARMS v. S & H QUALITY PRODUCE 1281 

Volume 44, Number 3 

CLEMON HOWELL and JOE HOWELL d/b/a HOWELL'S FARMS v. 
THOMAS SCOTT d/b/a S & H QUALITY PRODUCE, PACA Docket 
No. 2-6690. Decided May 16, 1985. 

Breach of contract; failure to pay Decision. 

Gerald A. Dickersan, Esquire, for complainant. 
Curt Hitckctby, Esquire, for respondent. 

Dennis Becker, Presiding Officer, 
Decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). A 
timely complaint was filed in which complainant seeks an award ot 
reparation in the amount of $1,731.32 in connection with the sale 
of a truckload of watermelons in interstate commerce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties. A copy of the formal com- 
plaint was served upon respondent. Respondent filed an answer 
thereto denying liability to complainant. Since the * n ^& 
as damages in the formal complaint does not exceed ? 15 . (J(JU ' U " tne 
shortened method of procedure provided in section 47.<iU ot tne 
Rules of Practice (7 CFR 47.20) is applicable. Pursuant to this pro- 
cedure the parties were offered an opportunity to file additional 
evidence. Neither party did so. Subsequent to the time for provid- 
ing additional evidence respondent filed an affidavit which was not 
accepted because it was not timely filed and because it was not 
properly verified. Neither party filed a brief. 

FINDINGS OP FACT 

L Complainants, demon Howell and Joe Howell, are individuals 
doing business as Howell's Farms, with an address at Route b, *ox 
534, Lucedale, Mississippi. 

2. Respondent, Thomas Scott, is an ^^ dcwigbu^ S 
& H Quality Produce, with an address at P.O Box 8^^ 
Arkansas. At the time of the transaction involved herein respond 
ent was subject to license under the Act. r^nnndent a 



~ 



12S2 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



the agricultural commodities Mr T n n 

talked to Mr. Red Puckett an eml ^f" f that <**iiati 
individuals entered in an agreement" th 1 XT*?*' Th Se * 
melons would be sold for 4^taTn 1 trUdd0ad f Wate " 
plainant. C6nts a P und to respondent by com - 

Banana o > or -~ n e T 98 T eived and "* 



"Generally f irm . Anthra g e HoTmT ^ to 
average. 23%. Over ripe ranges land 2 L? Per sam * 

Decay in most samples 2 and I rLL? ns ' averages 5% - 

Anthracnose Rot, in all stages " S ' many none ' aTC ge is 8% 

cember 14, 1983, which was wH\I y ^P 18111 ^ on De- 

cause of action herein accrued * m nths f the time the 



DISCUSSION 

the contract. Afeu; ^/TV^V prove the essent ial elements of 
Agric. Dec, 702 (1973) Based f? OC(oWon v ' a<dn ^ ?<"*&/, 32 
oeeding we find that complainant h Tecor ? av ^ ilable in this pro- 
Complainant contends that it sold Si wv** 1 * 16 ^ * ts burden of P roof - 
4 cents a pound to rpsn^* e "^ P un ds of watermelons at 
<et 731 oo j- , ~ respondent, for a tnfnl * nr ,t-~r,4- f 

vj-iial.SZ f.o.b. Respondent n th u contract price of 

watermelons were sold to it n? ^! * hand ' contends tha t the 
price of $1,29827 Furtherm -f & P Und f r a total contract 
quired that the watermelon b^'ij^^ ?*' the Contract re ' 
customer, Tropic Banann in *J when lns P ec ted by its 

Though there is BcaKL^* ! m Milwau kee, Wisconsin, 
tions is correct, there ia In ?T , ShOW Which of the two nt 

* i u-nd c m 311 inQPDPTinon^- J-li * 1 

vided evidence to thp n 4. cllut;nt tnira party which has pro- 
this transaction. That indpnp^ nt ,fu AgriCUltUre wifch res P ect to 
Vegetable Divisior i of K?^ third part ^ is th * ^uit ad 
and Commerce. Officials <ff ^ iS . S1SSlp P : . Department of Agriculture 

the terms of the con? Lt t w &Mon stated in a letter that 
mi _ >"** -vj4.n auv werf no oo^ fr.-j.i. i_ . i 

They further stated fcW tk !f by the complainant, 

stated that they were the actual organization which 



THE GARIN COMPANY y. NASH-DECAMP COMPANY 1283 

Volume 44, Number 3 

negotiated the contract terms with respondent and complainant. 
Therefore, as an ostensibly neutral third party their statements 
must be given great weight. See Homestead Tomato Packing Co, v. 

Mims Produce, Inc., 43 Agric. Dec (1984); Kern Ridge Growers 

v. T, J. Power & Co., 40 Agric. Dec. 425 (1981). 

Furthermore, while there was an inspection certificate which 
showed that there were considerable condition defects in the water- 
melons, such inspection cannot be given credence. The reason is 
that the inspection was held seven days after the watermelons 
were received and accepted by respondent when it picked them up 
in its truck for delivery to its customer, and were not properly 
identified on inspection as being the same watermelons as those 
which were sold by complainant. It is absolutely necessary that 
there be proper identification in order to assure that the inspection 
is of the product involved in a dispute. The mere statement on an 
inspection certificate that striped watermelons were involved is 
hardly sufficient to show this. 

In view of the above, we find that complainant has sustained its 
burden of proof to show that the contract price was 4 cents a pound 
for the watermelons for the total contract price of $1,731.32, and 
that respondent has failed to show it suffered damages because of a 
breach of contract by complainant. Since respondent has not paid 
any of this money, we find that its failure to pay complainant such 
amount is a violation of section 2 of the Act for which reparation 
should be awarded to complainant with interest. 

ORDER 

Within thirty days from the date of this order respondent shall 
pay to complainant, as reparation, $1,731.32, with interest thereon 
at the rate of 13% per annum from September 1, 1983, until paid. 



THE GARIN COMPANY y. NASH-DECAMP COMPANY, PACA Docket No. 
2-6308. Decided May 17, 1985. 

Decision. 

fifatthew M. Mclnermy, Newport Beach, CA, for complainant. 
Respondent, pro se. 

Decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.l P. 



1284 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



c ainant seeks 



a perishabie 
on ' i 



the formal complaint, indfiiK?"* Wa L SSrVed with a c < 
ability to complainant. a " SWer thereto den y in S an, li- 

Practice was followed. Under th^ *" S6 ? tl0n ^'^ oi " fc ^ e fiutes of 
of the parties are considered a nL^^T' *? e verified P^adingg 
is the Department's report of f evidence of the case, as 

were given the opportunity t mve ^ ? at ' on - In addition, the parties 
verified statements. Corno],!? rTj Urther evi dence by way of 

respondent an answeHnTstatem n ^ Ai^ OPening Statement ' ^ 
wenng statement. Also, respondent filed a brief. 

FINDINGS OF FACT 

1. Complainant, The Onrin rv, 
mailing address is P Draw. ^vT^' 1S a c ^ ora ^ h 

2- Respondent, Nash-DeCamn P ' California 93912 ' 

mailing address is PQ Box Si 97 ^^ P ^ y ' " ^ corporation whose 
mate, times, ^^1^^^ At - 

d. On November 1 iflfi? , ^ n . cr- 

complainant, by oral contract B nM So 1 " 86 f interstate ^nimerco, 
to respondent at a price of fi *n M f wra PP ed ^"w 

carton for cooling for ! Li ? ^ Ca . rton ft tb - plus C5 cent5 lf 
was to be shipped I to respondent' ^ f $3)925 ' 35 ' The lettuce 
in Sarasota, Florida At the f S J" s ' ^ ne Winn-Dixie Stores, 

parties did not specifically di t C0ntract was negotiated, the 
and/or grade. However re<, ^T f" 18 f Sale re ardin condition 
statement was routinpiv T ! p ndent was aw re that the following 
with buyers: "ALL SAT ffq^Vt? f com P Iai *ant' S agreement 
DELIVERY STANDARD APm v ^2^ GRADE CONTRACT GOOD 




rondent-ss ' ' 

WH of lading indicated S d r Sarasota - F l<-ida, customer. The 

tained in a Lgc ^ of 34' to 3 T ^ t f f mperature Was to be ail " 
November 5, 1982 The ul , ettuce arrived in Sarasota on 

ature range of 32 to 45'P A^ " Sh Wed an '"'transit temper- 
lettuce was the subject of a fenf , P ' m " n November 5, 1982, the 
that the cooler on he t'l lns P^tion. The inspector found 

tare range of the lettuce wl?! Mt operating ' that the tempera- 

-- 






THE GARIN COMPANY u. NASH-DECAMP COMPANY 1285 

Volume 44, Number 3 

not affected by condition defects are fresh and crisp. Head Leaves: 
From 7 to 10 heads per carton average 33% damage, including 3% 
serious damage by discoloration following bruising. No decay." Al- 
though the above statement is not entirely clear, the inspector's 
notes which are part of the record make clear that all of the 33% 
damage was from discoloration following bruising. The inspection 
was made while the lettuce was being unloaded. 

5, Subsequent to the inspection, respondent attempted to reject 
the load to complainant, but complainant refused to assume re- 
sponsibility for the lettuce. The load was transferred to the Ben H. 
Roberts Company, Tampa, Florida, for handling on consignment! 
On December 8, 1982, the Ben H. Roberts Company submitted an 
accounting on the load to respondent. The accounting indicated as 
follows: 59 cartons were sold at $4,50 per carton for a total price of 
$265.50; 490 cartons were dumped on November 23, 1982; and the 
Ben H. Robert Company charged 50 cents per carton for storage of 
the 549 cartons for a total storage fee of $247.50. In addition, re- 
spondent paid freight and truck hold over charges of $1,587.20, a 
brokerage fee of $82.35 to place the lettuce, a reloading charge of 
$120,00, and $21.00 for a dump certificate. The dump certificate in- 
dicated that 85% of the lettuce was discolored and decayed, and 
the temperature range was 38-42F. 

6, The formal complaint was filed on April 14, 1983, which was 
within nine months after the cause of action herein accrued. 

CONCLUSIONS 

Clearly the lettuce arrived in poor condition. 33% discoloration 
following bruising is far in excess of what one might consider 
normal. The dispositive issue in this case is whether the following 
statement on complainant's invoice enables it to escape from 
having responsibility for the load of lettuce: "ALL SALES F.O.B. 
NO GRADE CONTRACT GOOD DELIVERY STANDARDS APPLY 
EXCLUDING BRUISING AND/OR DISCOLORATION FOLLOW- 
ING BRUISING." 

The parties agree that no specific discussion was had at the time 
the contract was negotiated as to the inclusion of the above quoted 
exclusionary term in the parties' contract. Respondent relies upon 
this lack of discussion to claim that the agreement between the 
parties did not include the exclusion for bruising and/or discolora- 
tion following bruising. Complainant argues that the exclusion has 
long been included in its sales agreements and that, since respond- 
ent has dealt with it over a long period of time, respondent should 
have known the exclusion was part of the agreement. Respondent 
admits that it knew that complainant customarily made such a 



CUMMUIJITIKH ACT 

Volume 44, Number 8 



provision part of the parties' agreement, but claims that heretofore 
complainant was willing to negotiate settlements in situations 
where lettuce has arrived in poor condition. Since the parlies obvi- 
ously negotiated the proviso quoted above, we must hold that com- 
plainant has no responsibility for any of the damage. 

We are aware that it may be argued that a seller has an obliga- 

ion o disclose the poor condition of a commodity to n buyers) 

that the buyer can make an informed judgment as to whether or 

not to make the purchase. The condition of the lettuce upon arrival 

& ln n S 57; H* discolo f tion from bruising - m y "" "> 

b ard th, t to**** damaged prior to beinff loaded o n 

was nofin .v " 1 "^ ne might Condude that ' "etto 
was not ma condition, when shipped, which the ordinary ,,lonl 

tZ d rt f S c ndition been known to nS 
thet m rof?^r t t an bligati n to disclose ifc to "apondJm-i 
Dec 8 n .T fn nego ' iations - **<* Doc. No. 495?, S Agric. 

126 (956 H! ^ V ' CarUS Fruit Dist " t- IS Agric. Dec, 

he ondmon ofth, t,? " n r vidence *at complainant kn* 
during Pack "If u T"' ? 6 damage could have l 
On the ba Z'o 1^1 ^ ^ Unkn Wn 4 Pl'nl. 

Plainant d "o breal'tt 6 : :"" * ^ CaSS ' We hoM th<lt " 
respondent mus beheH f \ PS ntraCt Si " Ce St di<1 1!ot ' n " d 

complainant fentitd t 7? ^ 1"" aCC6Pted ^ lqUUI * 
53,925.35. Respondent's failur/t 0ntraCt price thercof - or 

violation of sectbn 2 of rt A 7 ay oom P ]ain ^t this amount i 3a 

should be awartd eo ' WhiCh reParati n pl " S inte " 



ORDER 

Within 30 days from th H 
' 



GOLDEN STATE DISTRIBUTORS u. TOP PAC GROWERS & SHIPPERS 1287 
Volume 44, Number 3 

GOLDEN STATE DISTRIBUTORS u. TOP PAC GROWERS AND SHIPPERS, 
INC., PACA Docket No. 2-6633. Decided May 17, 1985. 

Dismissal. 

Complainant, pro se. 

Thomas Ofiveri, Newport Beach, CA, for respondent. 

Decision by Donald A. Campbell, Judicial Officer. 

DISMISSAL ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). A 
timely complaint was filed in which complainant seeks a repara- 
tion award against respondent in the amount of $1,113.25 in con- 
nection with three shipments of tomatoes in interstate and foreign 
commerce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties. A copy of the formal com- 
plaint was served upon respondent, which filed an answer thereto, 
denying liability. 

Since the amount claimed as damages does not exceed $15,000.00, 
the shortened procedure provided in section 47.20 of the Rules of 
Practice (7 CFR 47.20) is applicable. Pursuant to such procedure, 
the report of investigation is considered to be part of the evidence, 
as are the verified complaint and answer. The parties were given 
an opportunity to submit additional evidence in the form of veri- 
fied statements and to file briefs. Neither party submitted any ad- 
ditional evidence. Respondent filed a brief. 

FINDINGS OF PACT 

1, Complainant, Golden State Distributors, is a corporation 
whose address is 8429 N. Third Street, Fresno, California. 

2, Respondent, Top Pac Growers and Shippers, Inc., is a corpora- 
tion whose address is P. 0. Box 1001, Tracy, California. At the time 
of the transactions involved herein, respondent was licensed under 
the Act. 

3, On approximately September 9, 1983, complainant's president, 
Lowell Schy, contacted respondent's employee, John Goscila, and 
arranged for the f.o.b. sale to Lakeshore Fruit Ltd, (hereinafter, 
"Lakeshore"), of 2,547 cartons of tomatoes, consisting of 1,415 car- 
tons of Large at $4.50 per carton> 1,132 cartons of Medium at $3.80 
per carton, plus $22.50 for a temperature recorder, $.50 per carton 
gassing, $.15 per carton palletizing (on 1,782 cartons), and $.15 per 
carton brokerage (complainant's lot no. 5188). 



PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

^ 'Ji ^GDufiinnpT* 1 ^ "J QQQ i 

Q,J i , ' iaoci t complainant prepared 
and invoice m a ^ a (- * , . _ t"- c F^ 



set forth f ?q P H 6 vn refleCting *" C0ntract 

brokerage fees Res Don d ' , L" g res P ndent f '' 2.05 h 
without obSon reCelTCd thlS confi ation and mvote 



n 



at 



and 

and i 

set forth m n g of Pact6',r eeCting * he C ntraCt 
age fee of $249 Ton <5 f \ 1 bllhng res Pndent for a broker- 

correcte conf tmation an 6m "l 1983 ' Com P lai ^"t Pl 
tract rice' V 1Ce 4 refleet a chan e in the 

These 



K 
8 The tow , ! 1 V6d by res P nden t without objection. 

eign lotme e to l SMpPed '" !nterstate and 

" 



sponden $83 as of t he a P H aS ' to date ' fa " ed to 

Plainant's brokerage fee " P n C ntraCt price ' indudin 



nf 

tons o tomatoL fir ^ Sale to Lakeshore of .5 <** 
carton and 3 ' - 2 ' f Lar S e -' W-OB P 

for a 



palletizing (for 1 7sTZ> V P , . Cart n gassin S' ^ 16 P er c rto 
Plainant's lot ^o 5190) X ^ $ ' 15 per oarton brokera S e <* 

an^irvoi^matll^ 198 ! ? 1 ! 1118 " 4 pre P ared a fiation 

t forthin Findtgof Facttand'h r 6fleCting ? e C ntaCt tems 
brokerage. Responded received ttf- reapondent for *.06 in 
out objection. re ceived this confirmation and invoice with- 

^\^r\r L a\ei 6 r 1 P 90 n: shipped in inter3tate * f - 

spondent arty .part of ft ' ^ t0 date has failed ' P^ r<=- 
complainant's brokerage fee UP n ntract price ' indut!in E 



GOLDEN STATE DISTRIBUTORS v. TOP PAC GROWERS & SHIPPERS 1289 
Volume 44, Number 3 

12. An informal complaint was filed on November 10, 1983, 
Which was within nine months from when the alleged causes of 
action herein accrued. A formal complaint was subsequently filed 
on June 21, 1984. J 

CONCLUSIONS 

Complainant contends that respondent is liable for the payment 
of its brokerage fees in connection with three sales of tomatoes 
from respondent to Lakeshore. Respondent insists that it was un- 
derstood by the parties that Lakeshore was to pay complainant's 
brokerage and that complainant would invoice Lakeshore as an ac- 
commodation to complainant. Respondent contends that it never 
received complainant's brokerage fees from Lakeshore. 

What must be determined in this case is the nature of the agree- 
ment among complainant, respondent, and Lakeshore with respect 
to the payment of complainant's brokerage fees for the three sales. 
The record contains three confirmations of sale and invoices pre- 
pared by complainant covering the three loads of tomatoes sold 
herein (Findings of Pact 4, 7, 10). These documents state the terms 
of the sales and request payment by respondent of complainant's 
brokerage fees in connection with such sales, totalling $1,113.25. 
Respondent received these confirmations without objection, and the 
confirmations are, therefore, considered evidence of the contract 
terms set forth therein. Casey Woodwyk, Inc. v. Albanese Farms, 31 
Agric, Dec. 311 (1972). However, there is " +u ' J ! - ** 



1290 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



w AsS tion > Inc - v - Sidney Sandier, 32 Agric. Dec. 
. We conclude that complainant has failed to sustain its 
burden of proving that respondent was contractually obligated to 
pay its brokerage fees without regard to whether such fees were 
ever received from Lakeshore. 

Respondent denies that it has received payment in full from 
Lakeshore. Complainant has not submitted any evidence indicating 
that payment designated for its brokerage was ever made to re- 
spondent by Lakeshore with respect to the three loads of tomatoes 
inereiore, respondent has no obligation to make any brokerage 
payments to complainant for the three loads of tomatoes. Conse- 
quently, there is no merit to the complaint and it must be dis- 
missed. 

ORDER 

The complaint is hereby dismissed. 



THOMPSON SALES Co., INC. v. FAVCO, INC., a/t/a/ MINNESOTA 

PRODUCE, PACA Docket No. 2-6663. Decided May 17, 1985, 
Failure to pay Decision. 



, I deliV6ry f mixed Cables from the complainant that con- 
damaged rad.shes. Complainant contends that the condition was brought 

tn nTr/rl ( ranSP rtati0n cond < tions - The b ^en of proof is upon the respondent 
h ^^u?" f the Pr duce Was normal > 8ince PondGnt is unable 



K 

granted by complainant. 

Complainant, pro se. 
Respondent, pro se. 

Decided by Donald A. Campbell, Judicial Officer, 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et sea.), A 
timely complaint was filed in which complainant seeks a repara- 

np^r ar llu a fu inat 1 re8pondent in the amount of $9,876.00 in con- 
nect on with the sale and shipment of mixed vegetables to respond- 
ent in interstate commerce. 

rep0r !l f investi S a ti Prepared by the Department 

GaCh f the parties ' A c Py of the formal com- 

upon respondent ' which filed an 



THOMPSON SALES v. FAVCO a/t/a MINNESOTA PRODUCE 1291 

Volume 44, Number 3 

Since the amount claimed as damages does not exceed $15,000,00, 
the shortened procedure provided in section 47.20 of the Rules of 
Practice (7 CFR 47.20) is applicable. Pursuant to such procedure, 
the report of investigation is considered to be part of the evidence, 
as are the verified complaint and answer, The parties were given 
an opportunity to submit additional evidence in the form of veri- 
fied statements and to file briefs, but elected not to do so, 

FINDINGS OF PACT 

1. Complainant, Thompson Sales, Co., Inc., is a corporation whose 
address is P.O. Box 598, Belle Glade, Florida. 

2. Respondent, Favco, Inc. a/t/a Minnesota Produce, is a corpora- 
tion whose address is 2801 Wayzata Blvd., Minneapolis, Minnesota. 
At the time of the transaction involved herein respondent was li- 
censed under the Act. 

3. On approximately April 27, 1984, complainant sold to respond- 
ent a truckload of mixed vegetables for $15,750,25, f.o.b. Included in 
the truckload were 800 packages of radishes at $8.00 per package, 
or $6,400.00, 700 packages of radishes at $8.15 per package, or 
$5,705.00, and five packages of radishes at $22.75 per package, or 
$113,75, for a total of $12,218.75. The radishes were cooled before 
loading. 

4. The truckload of mixed vegetables was shipped in interstate 
commerce from complainant to respondent's receiver, Northwest 
Produce Co., Inc., Minneapolis, Minnesota, and arrived on approxi- 
mately April 30, 1984. The radishes were unloaded and, on May 1, 
1984, were federally inspected, revealing as follows, in relevant 
part: 

Products Inspected: Topped RADISHES in filmed bags 

printed "Frontier, Klasse A, Pioneer 
Growers Cooperatives, Belle Glade, 
Florida," and "Net wt, 6 oz,," or "Net 
wt. 16 oz. (1 lb)," and packed in car- 
tons printed same brand and shipper 
and "30-6 oz," or "14-1 
lb." .... Applicant states 780 car- 
tons 6 oz., and 650 cartons 1 lb. bags 
radishes, . . . 

Condition of Load: Stacked on pallets at above location. 



Temperature of Product; In various cartons, radishes: 53" to 

66'F; 



1292 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

' Wn ' Radishes: Sack lot: Generally firm. Sot. 

lot: Decay in most samples 2 to 14%, 
in many none, average 6%. / lb. fat- 
Decay in most samples 4 to 10%, in 
many none, average 4%. Back lot: 
Decay is Bacterial Soft Rot in early 
stages. 

5 Complainant agreed to an adjustment of $580.18 for a part of 
the load not including the radishes. ' 

whti^ SPOn ? ent h t as , made P^it f $5,055.45, leaving $9,876.00 
which complainant claims to be due and owing 

7 A formal complaint was filed on August 23, 1984 which wiu 
within nine months from when the cause of action Se^^rS 

CONCLUSIONS 
totadT^ t haS T f f 6 Concerain g y of the produce con- 

piZLt o h i ;T ?K d of ,r xed vegetabies purchased fr m >- 

.'hes werf^hL " 7 HdiSheS ' Responden t allagai that the rnd- 
Tt the contT! y t deteriorated U P Arrival on April 30, 1084, 

It Produ On 7 ' ^ Wareh USe f its CUStomer ' N' 11 ^ 
Tends tha t' ^- Mmneapolis ' Minnesota. Complainant con- 

probiems 



a aCC6pted the mixed Stable, and, then- 

breach of w , 6 ' r 0ntraCt price ' lesa dama g es due < "V 
o provin.^ "r y 5 y T Plainant Re W d ent bears the bunfan 
d nee ZL r; r<3aC p ^ damages by a P^Pondenmce of the en- 
Dec 2279 mv ? ^T'/' V ' a SO Prod " ce ^ 41 A S 
warrantv If /K, l^' Sale ' com P la inant gave the Implied 
dftv f^ Shlpping condition ' which "eans that the 
S if ^ 'u 6 bme rfbilling ' is warra "t d t be in a condition 
service J ^f ^T"* ? handled under normal transportation 
iora :^ n at Z T' !*? aSSUr6 ddiVery With Ut abn al dol( - 

Cm 4 4 3 a). t The C Ma r r ^"^ ?"* ^ * ** ^ ' 
ishea and i j ^ ' ' lna P ectlon co red most of the rad- 

Si revealpTff t ,?. f rmal deteriOTati o^ However the inspection 
66T w^>, f 6 temperatoe rf the radishes was from 63' to 
been'tf t* B n ?," ^ f What the temperature should have 
tends that Zv tT COndHi nS were normal - Respondent con- 
proper loarft^ * 6mperature a "<1 by complainant's hi- 
proper loadmg, but has presented no evidence that, such was the 



J. RANDAZZO & SONS v. H&H PRODUCE SALES 1293 

Volume 44, Number 3 

It is respondent's burden to prove that transportation conditions 
were normal in order to invoke the warranty of suitable shipping 
condition, 0. P, Murphy Produce Co., Inc. a/t/a 0. P. Murphy & 
Sons v, Kelvin S. Ng d/b/a Ken Yip Company, 41 Agri. Dec. 772 
(1982). However, respondent has failed to introduce any evidence to 
show that the high pulp temperatures noted in the May 1, 1984, 
inspection resulted from anything but abnormal transportation 
conditions. Respondent is, therefore, liable for the contract price of 
the truckload, or $15,450.25, less the $518.80 in adjustments grant- 
ed by complainant, and the $5,055.45 which respondent has already 
paid, leaving $9,876.00. Respondent's failure to pay this sum to 
complainant is a violation of section 2 of the Act, for which repara- 
tion should be awarded with interest. 

ORDER 

Within 30 days from the date of this order, respondent shall pay 
to complainant, as reparation, $9,876.00, with interest thereon at 
the rate of 13 percent per annum from June 1, 1984, until paid. 



J. RANDAZZO & SONS, INC. v. H&H PRODUCE SALES, INC,, PACA 
Docket No. 2-6668. Decided May 17, 1985. 

Complainant, pm se. 

Thomas R. Oliveri, Newport Beach, CA, for respondent, 

Decision by Donald A. Campbell, Judicial Officer. 
REPARATION DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq,\ A 
timely complaint was filed in which complainant seeks a repara- 
tion award against respondent in the amount of $720.00 in connec- 
tion with the sale of a quantity of plums to respondent in inter- 
state commerce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties. A copy of the formal com- 
plaint was served upon respondent, which filed an answer thereto, 
denying liability. 

Since the amount claimed as damages does not exceed $15,000.00, 
the shortened procedure provided in section 47.20 of the Rules of 
Practice (7 CFR 47.20) is applicable. Pursuant to such procedure, 
the report of investigation is considered to be part of the evidence, 
as are the verified complaint and answer. The parties were given 



1-294 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

an opportunity to submit additional evidence in the form of veri- 
fied statements and to file briefs. Complainant submitted an open- 
ing statement and respondent submitted an answering statement. 
Respondent also filed a brief. 

FINDINGS OF FACT 

1. Complainant, J. Randazzo & Sons, Inc., is a corporation whose 
address is 4000 Orange Avenue, Cleveland, Ohio. 

2. Respondent, H&H Produce Sales, Inc., is a corporation whose 
address ia P.O. Box 846, Exeter, California. At the time of the 
transaction involved herein respondent was licensed under tho Act. 

3. On July 12, 1983, Dick Oleksa, an employee of C. H. Robinson 
Company, Eden Prairie, Minnesota, acting as a broker on buhnlf uf 
complainant, telephoned Paul Hardy, respondent's vice-prcsidonl, 
inquiring about prices for large plums. Later that afternoon, Mr, 
Oleksa again called respondent and spoke to Bob Harknews, re- 
spondent's salesman. Mr. Oleksa placed an order for shipment to 
complainant of 360 cartons of Simka Rosa 3 x3 plums at $11.00 
per carton, 360 cartons of Laroda 3x4 plums at $9.00 per carton, 
and 240 cartons of Queen Anne 3x3 plums at $11.00 per carton, 
plus $.70_ per carton for precooling and palletizing, f.o.b. Mr. Hnrk- 
ness advised that the plums would be supplied by Venidu Packing 
Exeter, California. Mr. Harkness said that, as Venida Packing wfis 
just starting to pack Queen Anne plums, complainant's ordor for 
them would have to be subject to their availability. 

4. On July 13, 1983, the broker issued a confirmation of will'. A 
copy was mailed to complainant which shows Venida Packing us 
the seller. Another copy was mailed to Venida Packing wliicli 
shows complainant as the buyer. Each copy sets forth the mile of 
dbO cartons of Simka Rosa 3x3 plums at $11.00 per carton, IHiO 
carton of Laroda 3x4 plums at $9.00 per carton, and 240 cnrtotm of 
Queen Anne 3x3 plums at $11.00 per carton, plus precooling and 
palletizing. Each copy states "Queen Anne subject to availability." 
Respondent was never sent a copy of the confirmation of sole. 

5. On July 13, 1983, respondent's Mr. Hardy notified tho broker 
by telephone that respondent could not fill the order. 

f 6 ;- n ,<r J Uly 15> 1983( com P laina "t sent a telegram to respondent 
stating [d]ue to your inability to ship Simka Rosa and Laroda'a as 
confirmed, it is necessary for us to purchase supplies elsewhere to 



7, After receiving complainant's telegram, respondent sent a 
reply on July 15, ,1983, stating as follows; 



J. RANDAZZO & SONS v. H&H PRODUCE SALES 

Volume 44, Number 3 



1295 



This is your official notice that H&H Produce Sales 
denies an/liability concerning a tentative agreement l 
ship plums to Randazzo Fruit Company or J Randazzo and 
Sons Cleveland Ohio on Wednesday July 18, 1988. A^you 
are aware, this shipment was P*^ n a rk- 
having necessary supplies of plums n ^Our Robert HarK. 
ness, who took order originally from Dick Olek a C. H 
Robinson Company Cleveland, advised would not be con 
firmed until later. H&H does not allow E ^ Z *H l " s 
buy against our tentative contract Fur*.j ^ 
never received a P.O. number or broker's '* 
eiing this potential shipment. Agam as shipment n at con 
firmed, H&H denies any liability to Randazzo F.uit. 
8. On Ju!y 18, 1983, complainant purchased ^m fend 
Zeller Co., Inc., San Francisco, California, 360 cartons o 
Golden Maid 3 X S plums for $12.00 per carton and 240 ca 
Lavoda 3x4 plums, plus $.70 per carton for coohng and pale ^ 
July 15, 1983, complainant purchased IK car or oi 
plums from Edward J. Zurowski & Sons, Ueveiano, 
per carton. . ., 19 1004 which was 

9. An informal complaint was filed on April ^ l 2 ' 1 ^^ ccrued . 
within nine months from when the cause , oT Action herem 
A formal complaint was subsequently filed on July u, 

CONCLUSIONS 



Complainant alleges that, acting throu] 

a quantity of plums from respondent and ^"^r Respondent 
breached the contract by refusing to deliver he plum^ nj ^ ^ 
denies that it sold the plums to compiainari , Pa cking, 

acting only as the ^\^.^^^tiTw^^r^ 
Exeter, California. Respondent claims f f Xms were subject to 
the broker that the sale and shipment o ^ of proving the con- 
their availability. Co n m PJ ai ^ an \^ aS thpr e eof a nd the resulting dam- 
tract terms, respondent's breach ^!f r ^^ ew York Produce Asso- 
ages by a preponderence of the ; evl ^ ce D 702 ( 19 73). 
ciatian, Inc. v. Sidney Sandier, A S ' ,, ^spondent agreed 
We will first discuss the question of whether F f ^ ^ 

to sell the plums to complainant or ^J^^ 8 ^ pO rted by 
actual seller, Venida Packing. R ^ sp0 ^" laina nt, which shows 
the broker's confirmation ot sale (Finding of Fact 4). 

Venida Packing, not respondent, as we ^ ^ confirmation 

In addition, respondent was never sen evidence in which re- 

of sale. However, the record contains on ^ 1983) 

spondent in effect admits that it sold the plum 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



f 



7) ' 



formance 
a ad^Tsson i 
wornZ ement 

ness detrZ 

eksa 



PackW wa n n where ae e es >' Vertta 

racking was the seller and respondent only its agent. It certainly 

faTnant t7 ^ l^T that ^dent's dispute wi 
st t to th P ,K- / h f her the C ntract was tentati 

deny act ne as Th , * ^ PlUmS ' a " d that reS P 0ndent 

Mr Ha dv g " s ' ^ " er ' Res P ond ^ ^orn answer, signed by its 

was fhe seilP T f ^ "" aPPar6nt admission that res P^' 
Iraph 4 of h ' ,' f e f pondent mak ^ g^eral denial of para- 
was P a co L r art C T P , m V n Whi h ""Pliant alleged that thne 
Plums atf / Sa '! fr m res P de ' to complainant for the 
Plums at ,ssue. Respondent also states with respect to paragraph J 

Contract s ^tion base ff v 

SUpply of said P lums '' Respondent's 
cknowled g ing the existence of its contact 

nly whether respondent's pa, 
availabilit y of the plums. A simi- 
res P ndent ' s a sw <^ BtatemoDl, a 
, f lesman . Robert H. Harkness. Mr, Hark- 
13 ' 1983 ' tele P hone conversation with Dick 

the broker: " Later that ^. 
Ca " from **. Oleksa stating that ho 

RandaZZO would be bu y ; "g Wtot.Qr 
advis , ed Mr - Oleksa of C. H. RobLon that 

U6St to buy against our colltact 
Was based availability of the 

Ur C ntraCt " by Mr ' Harkne " s show 
com P lainant ' s P urchase of *e plums was 
record ' we c n <='^ *at the 



of 



cont a t t 
wou d ' 

because of thp 
s' Thel 

' 



from 



Venida Packng 



and not merelv as the 



ei e " 

with no such condit avai abllitv . as respondent asserts, 

Mr. Harknet who ^ clamed bv complainant. Respondent's 
broker's ^A'^J^^ this contingency with the 

all the plums were sold suhfe^/T 11 answerin S statement that 
were sold sue: to their availability from Venida 



J. RANDAZZO & SONS u. H&H PRODUCE SALES 1297 

Volume 44, Number 3 

Packing. Mr. Oleksa states in his sworn opening statement that 
only the Queen Anne plums were agreed to be provided subject to 
their availability. Mr. Oleksa states that he put this condition in 
the broker's confirmation of sale, and the confirmation does reflect 
this (Finding of Fact 4), Mr. Harkness is employed by a party to 
this proceeding and, therefore, his account of what transpired is 
self-serving and deserving of less weight than the sworn statement 
of Mr. Oleksa. We, therefore, accept Mr. Oleksa's account, and con- 
clude that the 360 cartons of Simka Rosa plums and the 360 car- 
tons of Laroda plums were sold to respondent without the condition 
that they be available from Venida Packing. 

Respondent's failure to ship the 720 cartons of plums specified in 
the contract was a breach of that contract. The measure of dam- 
ages for non-delivery by the seller is the difference between the 
market value at the time the buyer learned of the breach and the 
contract price, Feldman Brothers Produce Co., Inc. v. A, Pellegrino 
& Sons, 32 Agric. Dec. 1845 (1973); Uniform Commercial Code, Sec- 
tion 2-713(1). If a cover purchase has been made, the buyer may 
recover from the seller, as damages, the difference between the cost 
of the cover and the contract price, provided the cover purchase 
was made in good faith and without unreasonable delay. Feldman 
Brothers Produce Co., Inc. v. A, Pellegrino & Sons, supra 1 , Uniform 
Commercial Code, Section 2-712. 



1298 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



ORDER 



of .3 percent 



, -Pendent 



pay 



In r 



Failure to pay-Reparation 

Complainant, pro se, 
Respondent, pro se. 

Decision by Donald A. 



Docket No. 2-6764. Decided May 20, 1985. 

Order. 



timely comp aint 

tion award 

necti 

of the formal 

an answer 



Campbell, Judicial Officer. 

REPARATION ORDER 

ce : ding un , de ; the Perishabie 

amended (7 U ' S ' G 499a et 
Which mm ^"^ seeks a repara- 

Unt f ' 21 ' 78B - in "' 
ums In inte '^tate commerce. A copy 

* ^ re8Pmdmt ' whic!l fil ^ 
material ^legations of the com- 

daimed b > eompWnant Accord, 



47.8(d)). 



Practice (7 CFR 



California s 5 Reone,, ^ 11 Buttonwillow, Reedle,, 
corporation whose S' ^ C ast Produce Sales - Inc " is a 

Boulevard S^teLvtr "n B X 3 ?2 ' 295 S Uth Moon ^ 

transaction in^/herefn Cahf a 98278 ' At the time of the 
nvoived herein, respondent was licensed under the 



findings^ 
dude that the action, 
the Act (7 USC 
ant of $21,789 OO' 



ad pte(i as 
of these facts - we c( "" 

in violation { - 2<>f 
f 8ulted in dama S es fo complain. 



to complainant, as reparation, 



LULU PACKING CORP. v. WEST COAST PRODUCE 1299 

Volume 44, Number 3 

$21,789.00, with interest thereon at the rate of 13 percent per 
annum from November 1, 1984, until paid. 



LULU PACKING CORPORATION v. WEST COAST PRODUCE SALES, INC., 
PACA Docket No. 2-6765. Decided May 20, 1985. 

Failure lo pay Order. 

Complainant, pro se. 
Respondent, pro se. 

Decision by Donald A. Campbell, Judicial Officer 

REPARATION ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et se?.). A 
timely complaint was filed in which complainant seeks a repara- 
tion award against respondent in the amount of $2,979,00 in con- 
nection with a shipment of applepears in interstate commerce. A 
copy of the formal complaint was served upon respondent, which 
filed an answer thereto, admitting the material allegations of the 
complaint, including the indebtedness claimed by complainant. Ac- 
cordingly, the issuance of an order without further procedure is ap- 
propriate, pursuant to section 47.8(d) of the Rules of Practice (7 
CFR 47,8(d}), 

Complainant, Lulu Packing Corporation, is a corporation whose 
address is 125 South Mount Vernon Avenue, P.O. Box 130, Lindsay, 
California 93247. Respondent, West Coast Produce Sales, Inc., is a 
corporation whose address is 2942 South Mooney Boulevard, Suite 
D, Visalia, California 93277. At the time of the transaction involved 
herein, respondent was licensed under the Act. 

The facts alleged in the formal complaint are hereby adopted as 
findings of fact of this order. On the basis of these facts, we con- 
clude that the actions of respondent are in violation of section 4 ot 
the Act (7 U.S.C. 499b) and have resulted in damages to complain- 
ant of $2,979.00. Accordingly, within 30 days from the date oi this 
order, respondent shall pay to complainant, as reparation, 
$2,979.00, with interest thereon at the rate of 13 percent per 
annum from October 1, 1984, until paid. 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



< - 

Complainant seeks to recov! , ' ^ ****** ^ ^ 1985 ' 

that respondent accepted the s^^ *"** f 19 trays of ^wb 
-d broker ad.it ^^^^^^ ? ^ P- 
the complainant failed to meet th, 1 r ! **"** bUt the evidence sh * * 
Pute when he continued t Tsh L ^T T f the 3Ct ln Settlemcjlt of th = * 
Proceeds of the resale. T^t w "1 h""' J ? Ildent b rdered "> PX 
lheie was bas.s found holding respondent G 



i, for complainant. 

nespondent, pro s e . 






reparation agams^^ fc Whic f! Complaillant seeks an award of 
nection with thp Bn i Q <- n l n amount of $1,82100, in con- 
interstate commerce reSP ndent f 19 tra * s of -" wbrto In 

each respondent R P <nS * 4 formai com P-laint was served upon 

_ i ""in. nuauuiitlQnt -Hnvoi-onvi ff a fi -\ 

nying any liability t -^^vci&un at oons, rued an answer tte- 

uting Co., Inc. failed t r i ain . a Despondent, Georgalos Distrib- 
issuance of a defini]** !f & ^f 16 ^ answer - However, prior to the 
Reopen the Proceeding Aft' n respondent filed a Motion to 
answer pursuant to section^ K ^i a d &II W the filing of an 
47.25(e)). On June 4 IQR/i R^s of Practice (7 CFR 

Inc.'s default in the fMin7' f spondent Georgalos Distributing Co., 

Posed answer, previous! sub" 3nSWer ^ Set aSide> 3nd a ^ 
dered filed. This answer de^ H" d . by such respondent, was or- 
nection with the strawberries ^ liability to coni Plainant in con- 

The amount claimed d 

not exceed $15,000 00 and th^l 868 *" the fornial complaint does 
vided in section 47 2o'nf tL n f ortened method of procedure pro- 
bable. Under this l^** f ^f*? 00 (7 CFR 47,20) * ^ 
are considered a part of thp I '] VBnfied P lea dings of the parties 
of investigation. In addition f ? dence '. as is th ^ Department's report 
to file evidence in the form nf Partl6S Were ffiven an opportunity 
an opening statement, both 7 S * atements - Complainant filed 
m ents, and complainant fiioj ^ spondents filed answering state- 
a brief. mant file d a statement in reply. Each party filed 



COASTAL BERRY CORPORATION v. HOVERSON & SONS 1301 

Volume 44, Number 3 

FINDINGS OF FACT 

1. Complainant, Coastal Berry Corporation, is a corporation, 
whose address is P.O. Box 1304, Watsonville, California. 

2. Respondent, Hoverson & Sons, is a partnership composed of 
Herbert E, Hoverson, and Timothy J, Hoverson, whose address is 
2 South Water Market, Chicago, Illinois. At the time of the trans- 
action involved herein this respondent was licensed under the Act. 

3. Respondent, Georgalos Distributing Co., Inc., is a corporation 
whose address is P.O. Box 1862, Salinas, California. At the time of 
the transaction involved herein this respondent was licensed under 
the Act. 

4. On or about Wednesday, July 27, 1983, complainant sold to re- 
spondent Hoverson, through respondent Georgalos, acting as 
broker, 190 trays of strawberries at $8.50 per tray, plus $.60 per 
tray for precooling, $.15 per tray for brokerage, and $.35 per tray 
for freight to the airport, or a total of $1,824.00, f.o.b. The strawber- 
ries were placed in a refrigerated air container, and transported to 
the airport on the evening of July 27, 1983. The bill of lading 
issued by complainant disclosed that the strawberries were des- 
tined to leave San Francisco airport by United Airlines flight 
number 130 on Thursday, July 28, 1983, at 4:15 p.m., with arrival 
scheduled at O'Hare Airport in Chicago for Thursday, July 28, 
1983, at 10:05 p.m. 

5. During the morning of Thursday, July 28, 1983, respondent 
Hoverson called respondent Georgalos and talked with its president 
Tom Georgalos. Respondent Hoverson told respondent Georgalas to 
cancel the shipment of strawberries purchased on July 27, 1983. 
Tom Georgalos then called complainant and spoke with Pat Rior- 
dan, conveying the message given to him by Hoverson. Mr. Riordan 
stated that it was too late to cancel. Tom Georgalos then asked Mr. 
Riordan if he could move the berries elsewhere, and was told by 
Mr, Riordan that he would try. Complainant did not succeed in 
moving the berries elsewhere, and did not stop delivery of the ber- 
ries. Tom Georgalos called back later in the day, and found that 
Pat Riordan had left for the day. Mr. Georgalos talked with Mr. 
Riordan's secretary, asking her to see if the berries had been 
moved elsewhere. Mr. Riordan's secretary informed Mr. Georgalos 
that she saw no order by Hoverson. Mr. Georgalos informed Hover- 
son of this, and it was assumed by Mr. Georgalos and Hoverson 
that the berries had been moved elsewhere. 

6. The strawberries were flown out of San Francisco, as sched- 
uled, on July 28, 1983. On the morning of July 29, at 9:00 a.m. re- 
spondent Hoverson was notified by the airline that the strawber- 
ries were at O'Hare Airport. Hoverson informed Mr, Georgalos 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



<* 



basis emeS C Uld be handled 



r "attoo ^'^r notif -d by the aWine , lhe 
begnon thltlv P a '"!," " JU ' y 29 ' * Was to late fo '' ! t. 

canffstorT tT^ f 6 ",' be St3Cked " pallets in " "^ 

n the* Ter " * r^ * WaS Stated 4 be stacked P a " 

was sU 6 F T ^p i n t re ' ""? ^^^ '" Mch ' Ot 

the berries waa sLted to be !s SCT ' Catl0nS - The C Ilditiffll f 



' m Stly 
damage 



1S Gray Mold 
generally occurring in nests. 



I 8 none ' - 

' en US damage ^ bruised - wst and leaking 



to 



CONCLUSIONS 



ment s submitted by rpnd " U(t t0 rebut the ^ 

i ny respondent Hoverson and respondent Georga- 



COASTAL BERRY CORPORATION v. HOVERSON & SONS 1303 

Volume 44, Number 3 

los, we have found that the findings are supported by a preponder- 

ance of the evidence. . 

It is apparent that respondent Hoverson wrongfully rejected the 
strawberries to complainant when it communicated its cancellation 
of its prior order to the complainant, through the broker, on the 
morning for July 28, 1983. However, complainant's legal remedies 
at that point, for respondent's wrongful rejection, did not include 
going ahead with shipment of the berries. See Uniform Commercial 
Code section 2-703. Nevertheless, complainant did proceed with 
shipment, and also failed to notify either respondent that he was 
doing so. This occurred under circumstances which implied that 
the berries would be sent to another buyer, and that shipment to 
respondent Hoverson would not take place. Under the circum- 
stances of this case complainant cannot recover the price of tne 
strawberries. See UCC sections 2-703(e) and 2-709. However, com- 
plainant might have recovered damages for non-acceptance (see 
UGC 2-709(3) and 2-708), had it not been for complainants 
agreement on the morning of July 29, that respondent Hoverson 
should handle the berries on a consignment basis. Although com- 
plainant contended that no such agreement was made, the recora 
shows that the broker issued a new confirmation of sale showing 
the berries should be handled on a consignment basis, and that 
complainant failed to send any written objection thereto for more 
than two weeks following the issuance of such "Bmo^m-Af 
cordingly, we have found that the broker's account of what tran 
spired is correct. See Hanover International Corporation v. Bail 
BroA6 W eCo. J 7nc.,34Agric.Dec.665(1975). 

Complainant is entitled to the net proceeds of ' 
$11.95 Since this amount has already ^^^ 
ant and refused, no interest can be awarded. There is no 
holding respondent Georgalos liable to complainant. 



ORDER 



Within thirty days from the date of this ^^^^ 
son & Sona shall pay to complainant, as reparation, the 

$1 The 5 ' complaint against respondent Georgales Distributing Co., 
Inc. is dismissed. 



1304 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



r BROS " 

May 22 DUCTS P 



Breach of contract; failure to pny-Dccision. 






Complainant, pro se. 
Respondent, pro se. 

George S. Whitten, Presiding Officer. 
Decision, by Donald A. Campbell, Judicial Officer. 
DECISION AND ORDER 



al, under the Perishable Agricultur- 

al Commodi ,es Act, 1930, as amended (7 U.S.C. 499a et S > A 

I' t,! WaS fi ' ed " WWch """Pliant seeks an a of 
necZ wilh", * am0 t Unt f $2 ' 62 ' 62 ' against Despondent, in con- 
trSaCtl 



tne sale and 



trucklo nf f sae 

truckload of tomatoes in interstate commerce 



t C 8 PrL H f ^ repor * of j nv ^tigation prepared by the Department 
a n Z , P n , ea h f the PartieS ' A c Py of the f l "" 



r r pondent . which filed an answer thereto 
c T2 lainant The amount Involved in the com- 
HT ed $15 ' 00 - 00 ' and a rdingly, the shortened 
I I ! d V d , m r S T eC l i0n 47 ' 2 Of the Rules of Practice (7 CFR 
and ~T able : " nder this P r edure the verified complaint 

ment' s T Dn rn f COnSld f red .* P8rt f the evidence > as is the ^. 
ments reor of investigation. In addition, the parties were given 



howev e - 

however, neither party did so. Neither party filed a brief. 

FINDINGS OP PACT 

' D *? B PacMng Cor P" is a Corporation also trad 

P.O. 



.' In " is a c Poration whose ad- 

tmctio^ t ' P rtland ' Ore g' At ^e time of the 

transaction mvolved herem respondent was licensed under the Act. 

one uckT a a do U f n f N r i' 19 ?' com P lai "ant sold to respondent 
one truckload of U.S. No. 1 grade tomatoes as follows: 72 cartons 



D M B PACKING CORP. v. GARDEN PRODUCTS, INC. 1305 

Volume 44, Number 8 

extra large and larger, Typak brand, at $10.00; 360 cartons, large, 
Typak brand, at $9.00; and 432, medium, Typak brand, at $7.00; 
plus $.50 for gassing, and $.15 for palletization, or a total of 
7,545,60, f.o.b. It was agreed between the parties that the tomatoes 
would be gassed on the 7th of October, and shipped on the 13th of 
October. The tomatoes were gassed on October 8, 1983. 

4, Between 10:00 a.m. on October 8, and 1:00 p.m. on October 10, 
1983, 936 cartons of tomatoes were federally inspected at complain- 
ant's place of business, and found to grade "U.S. Combination 85% 
U.S. No. 1 quality" with less than Va of 1% decay. The inspection 
stated that the tomatoes were mature green, and did not disclose 
the size of the tomatoes, but rather stated: "Meets Size as 
Marked". 

5. On October 12, 1983, complainant shipped from Newman, Cali- 
fornia, to respondent in Portland, Oregon, 864 cartons of tomatoes 
of the sizes designated in Finding of Fact 3. The tomatoes arrived 
at respondent's place of business on October 13, 1983, at 10:00 a.m. 
At 11:15 a.m., on that day, the tomatoes were federally inspected 
after being unloaded into respondent's warehouse. Such inspection 
disclosed that the temperature of the tomatoes ranged from 65 to 
74F> The condition of such tomatoes was stated to be as follows: 

Lg Size lot: Average approximately 5% green and break- 
era, 35% turning and pink, 60% light red and red. Decay 
average 1%. Average 7% damage by bruising. 

XLG size lot: Average approximately 5% green and break- 
ers, 35% turning and pink, 40% light red and red. Soft 
ranges from 12 to 16%, average 14%, Decay average 4%. 
From 8 to 16%, average 12% damage by bruising. Average 
8% damage by sunken discolored areas, generally occur- 
ring over shoulders. 

Med. Size lot: Average approximately 15% green and 
breakers, 35% turning and pink, 45% light red and red. 
Soft and decay ranges from 4 to 13%, average 7% includ- 
ing 1% soft and 6% Bacterial Soft Rot in various stages. 
Average 5% damage by bruising. 
Bruising in each lot: Scattered throughout pack. 
6. On October 19, 1983, at 9:50 a.m., 267 cartons of the large size 
tomatoes were again subjected to federal inspection. Such inspec- 
tion disclosed that the temperature of the tomatoes was 53 F. and 
the condition was stated to be "average approximately 70% light 
red and red. Soft averages 5%, Decay ranges from 20 to 32%, aver- 



1306 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



?* !nl S U /^ 0t in u various sta e es - Ave ^ge 4% damage by bruis- 
ing, scattered throughout the pack," 

7. Respondent did not render an accounting to complainant, but 
has paid compliant $3,582.20. In addition, complainant granted 



n 

tho con- 



8, The formal complaint was filed on February 21, 1984, which 
was witiim nme months after the cause of action herein accrued 



CONCLUSIONS 



a 



,n f T e T^ m tWs pr ceed ing that respondent , 

cepted the tomatoes, and thus became liable to complainant for the 
full purchase price thereof, less damages for any breach of contract 
. L respondent Respondent contends that complainant 
u 6 r tra u Ct f S3le by gassin g the tomat ^ one day ]ate, 

? m tl f t0mat es not bei "g read y fOT sale h e n tlW 
due to not having proper color. Respondent states that it 
mid to wait to market the tomatoes until October 18, 1983, and 
mat as a result the market price decreased from $10.00 to $8,00 per 
case on the extra large tomatoes, from $9.00 to $6.00 per case on 
the large tomatoes, and from $7.00 to $5.00 per case on the medium 
tomatoes, plus an additional $.65 for palletizing and cooling. Re- 
S m tted Fe , deral - State Market News reports for fht 
f " J f ^^ VaUey district of California in an effort to 
^^ dedine ' However ' for "SPondant to show 
?f f 3 shl PP in S P 1 " h^ no necessary relevance to 

nation flr fj atl ?u' The mrket prices of the tomato ^ * toll. 

& UCG 8 ^V^f " Iy Pri eS that are S ermane to *> * 
Mark^T) n J llS res P nden t did not submit destination 

fthe clnl? ,"! f nSUlted the re P rts fOT SeaHfc. WaaWngtai 

available L^ J W - iCh Marke ' Ne Ser " Ce Reporte ere 

Th reltaH , P T d Ct ber 18 ' throu S h October I* >8* and 

the sizes Tvnl 1SC ' Sed u Signifi ant market decline for tniatoc s of 

hLh resD t^ Pr Ceeding ' ^ additi n ' We note that ' a1 ' 
matoes K?* has P ro , ven that complainant submitted the to 

Tar v it ifr^fr*u day lat6 ' and shipped such tomatoea ne daj- 
any silf lc b ff *** . reapondent has *own that this c al j 

event le, f ?? ^ " marketing f the tomatoes - In a y 
sultilfrom - hat :, eS u P ndent has failed to show -tamase. re 
matoes. C mplamant s b * b delaying the gassing of the to 



1983 \hf ^Lf^ 6 ^ 1 ? 11 ? f the tomat es made on October 13, 
!. shows that the extra large 8 i ze lot of tomatoes was far worse 



MANN PACKING COMPANY u. STANLEY AND JOE RUSSO 1307 
Volume 44, Number 3 

in condition than either of the other lots, This lot was of course, 
the smallest, amounting to only 72 cases. Considering the lot ship- 
ment tomatoes as a whole, the inspection does not show that the 
load failed to make good delivery. However, this does not mean 
that we would be precluded from awarding damages relative to the 
extra large size tomatoes, assuming that such damages had been 
proven. Respondent did not submit an accounting of the resale of 
the tomatoes, and consequently respondent did not prove damages. 
See Genbroker Corp. v. Super Food Service, 38 Agric, Dec. 83 (1979J. 
The same comments are applicable to the large size tomatoes cov- 
ered by the federal inspection made on October 19, 1983. However, 
It should also be noted that this inspection does not substantiate a 
breach of warranty on the part of complainant, due to its late date, 
and also due to the fact that it covered only 267 cartons out of the 
total 360 shipped. 

The complaint alleges that the tomatoes were sold as U.S. No. 1 
grade, and respondent in its answer affirms that this was the case. 
The federal inspection made at shipping point, however, shows that 
the tomatoes were graded U.S. Combination, 85% U.S. No. 1. Al- 
though this clearly constitutes a breach of contract, respondent 
made no complaint concerning this breach, and also, there was no 
showing of damages resulting from such breach. 

In view of the foregoing discussion we conclude that respondent, 
having accepted the tomatoes, is liable to complainant for the full 
contract price thereof less the $3,582.20 already paid, and the ad- 
justment in the amount of $1,900.80 allowed by complainant, or a 
net amount of $2,062.60. Respondent's failure to pay complainant 
such amount is a violation of section 2 of the Act for which repara- 
tion should be awarded to complainant with interest. 

ORDER 

Within thirty days from the date of this order, respondent shall 
pay to complainant, as reparation, $2,062.60, with interest thereon 
at the rate of 13% per annum from November 1, 1983, until paid. 



MANN PACKING COMPANY, INC. v. STANLEY and JOE Russo, PACA 

Docket No. 2-6577. Decided May 22, 1985. 

Respondent accepted shipment of broccoli from ^^^^S^. 
price agreed upon due to damage of the produce white ^i^ZSt' fhe Tip- 
ent wa? unable to provide any evidence to prove sub . antmT Damage sh.p 

ment and therefore ordered to pay as reparation the full purchase pnce. 



1 308 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Thomas Oiiveri, for complainant. 

Sturim & Nizin, Kew Gardens, NY, for respondent. 

George S. Whitten, Presiding Officer. 

Decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultw 
al Commodities Act, 1930, as amended (7 U.S.C. 499a ct sea) 
timely complaint was filed in which complainant seeks an award ( 
reparation m the amount of $6,616.90 against respondent in cor 
nection with the sale of one truckload of broccoli in interstate con 



A copy of the report of investigation prepared by the Depnrtmen 
was served upon each of the parties, and respondent was Ktn 
with a copy of the complaint. Respondent filed an answer to th 
complamt stating that it had made a partial payment to complain 
ant due to government inspections". 

f*? n u e * He T Unt laimed as dama ges does not exceed $lf>,flOO.ft 
tne shortened procedure provided in section 47.20 of the Rules c 
Practice (7 CFR 47.20) is applicable. In accordance with thTpI 
dP^p e i f* P f arties 7 ei ' e ^ven an opportunity to file further uA 
Oence in the form of sworn statements. Complainant filed on open 

Comn ^ em T^i * esp , ndent did not file an answering stnloment 
Complainant filed a brief. 



FRONTIER PACKING v. GILARDI TRUCK & TRANSPORTATION, INC. 1309 
Volume 44, Number 3 

age 4% damage by open yellow flowering buds, 1 to 3 Bunches per 
carton average 14% damage by turning yellow bud clusters. No 
decay/' The certificate stated that the inspection was "restricted to 
initial 200 cartons being unloaded and in 4 incomplete stacks near- 
est rear doors." 

6. The formal complaint was filed on April 20, 1984, which was 
within nine months after the cause of action herein accrued. 

CONCLUSIONS 

The only submission by respondent in this proceeding was an ex- 
ceedingly brief unsworn answer to which was attached a copy of a 
federal inspection report. Technically, this inspection report was 
not even in evidence, however, it was tacitly admitted by complain- 
ant's opening statement. The inspection reveals a total of 18% con- 
dition defects which is excessive for broccoli, although the length of 
time which this truck was in transit together with the somewhat 
high temperatures makes this a borderline case as to whether this 
broccoli made good delivery. However, it is not necessary that we 
decide this issue since respondent totally failed to submit any data 
upon which we can assess damages. One of the necessary compo- 
nents needed to assess damages is the value of the commodity ac- 
cepted. This may be shown by the results of a prompt and proper 
resale. Respondent submitted no accounting, and consequently re- 
spondent cannot be awarded any damages in this proceeding. See, 
Anthony Brokerage, Inc. v. The Auster Company, Inc., 38 Agric. 
Dec. 1643(1979). 

Respondent accepted the broccoli and therefore became liable to 
complainant for the full purchase price thereof, or $6,616.90. Re- 
spondent's failure to pay complainant such amount is a violation ol 
section 2 of the Act for which reparation should be awarded to 
complainant with interest. 

ORDER 

Within thirty days from the date of this order respondent shall 
pay to complainant, as reparation, $6,616.90, with interest thereon 
at the rate of 13% per annum from March 1, 1984, until paid. 



FRONTIER PACKING Co. v. GILARDI TRUCK ^TRANSPORTATION, IKC, 
PACA Docket No. 2-6592. Decided May 22, 1985. 

F! lure to pay Decision. 

Respondent accepted produce shipped by complainant an proceeded to at empt to 

make payment in $500.00 installments. Complainant would not accept the partial 






PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 

-fcta? S 1 ^', ~?!-. - hna 

101 the price of the 



, r complainant, 
Gary B. SUBSET, for respondent. 

GeorgeS. Whitten, Presiding Officer, 
by Donald A 



DECISION AND ORDER 



complaint w Sin 
reparation against resn^ 
connection wHh he sale anrt 
interstate commerce A 
6 



""to the Perishable Agncutor 



. 
complainant seeks an awart | f 

"^ am Unt f $27 ' 439 - 5 - in 
f eight loads of letta " 



the formal 
answer thereto 

Although the 
^,000, the partie Tave 
shortened method of pm 
47.20) is appl Labi 
of the parties are 



parties ' A 

, reSP ndent which 
complainant. 



n , 

? f ^u 68 "" 6 ' and 

^ " the Rules of Pract 

Pr Cedure the V G P>* 
" part of the evide "^ heroin, as 



, 

' the Department's ep or t of T 6d " part of the evide "^ he 
re given the opportuni v t ' n St ' ga ' IOn ' In addition ' the 
statements. Complain! %S ' 6 evldence in the f f 
id not file an answering If an P enin S statement. Respondent 
nswenng statement. Neither party filed a brief. 






FINDINGS OP PACT 



of a 

3008, Salinas, Califo rnia 



C " is a Partnership composed 
Wh Se address ? ^ B 



"J the transaction 
the Act. 



a 



SWney ' Ohio ' At the 
respondent was licensed under 






fPondent in Sidney, Ohio 
-duding cooling an7 mp 
The ettuce was accepted by 
and the total of the purchase 
Despondent. PUrchase 



-Id to re spmd - 
point in California, to re- 
bulk j ett ^= for a totai price, 

e ' f $3 ' 6Y5 ' 26 ' f ' ab ' a - 
" arrival at destination, 
remains due and owing from 



FRONTIER PACKING v. GILARDI TRUCK & TRANSPORTATION, INC. 1311 
Volume 44, Number 3 

4. On or about October 7, 1983, complainant sold to respondent, 
and shipped by truck from loading point in California, to respond- 
ent in Sidney, Ohio, 39 bins of bulk lettuce, for a total price, includ- 
ing cooling and temperature recorder, of $3,869.05, f.o.b.a. The let- 
tuce was accepted by respondent on arrival at destination, and the 
total of the purchase price remains due and owing from respond- 
ent. 

5. On or about October 11, 1983, complainant sold to respondent, 
and shipped by truck from loading point in California, to respond- 
ent in Sidney, Ohio, 16 bins of bulk lettuce, for a total price, includ- 
ing cooling, of $1,792.80, f.o.b.a. The lettuce was accepted by re- 
spondent on arrival at destination, and the total of the purchase 
price remains due and owing from respondent. 

6. On or about October 11, 1983, complainant sold to respondent, 
and shipped by truck from loading point in California, to respond- 
ent in Sidney, Ohio, 38 bins of bulk lettuce, for a total price, includ- 
ing cooling and temperature recorder, of $4,446.25, f.o.b.a. The let- 
tuce was accepted by respondent on arrival at destination, and the 
total of the purchase price remains due and owing from respond- 
ent. 

7. On or about October 14, 1983, complainant sold to respondent, 
and shipped by truck from loading point in California, to respond- 
ent in Sidney, Ohio, 10 bins of bulk lettuce, for a total price, includ- 
ing cooling, of $1,058.75, f.o.b.a. The lettuce was accepted by re- 
spondent on arrival at destination, and the total of the purchase 
price remains due and owing fi*om respondent. 

8. On or about October 18, 1983, complainant sold to respondent, 
and shipped by truck from loading point in California, to respond- 
ent in Sidney, Ohio, 32 bins of bulk lettuce, 75 cartons of Jumbo 
carrots, 60 cartons of celery, and 20 cartons of cauliflower, for a 
total price, including cooling and temperature recorder, of 
$4,921.90, f.o.b.a. The produce was accepted by respondent on arriv- 
al at destination, and the total of the purchase price remains due 
and owing from respondent. 

9. On or about October 20, 1983, complainant sold to respondent, 
and shipped by truck from loading point in California, to respond- 
ent in Sidney, Ohio, 38 bins of bulk lettuce, for a total price, includ- 
ing cooling and temperature recorder, of $4,299.50, f.o.b.a. The let- 
tuce was accepted by respondent on arrival at destination, and the 
total of the purchase price remains due and owing from respond- 

er \b. On or about October 28, 1983, complainant sold to respondent, 
and shipped by truck from loading point in California, to respond- 
ent in Sidney, Ohio, 38 bins of bulk lettuce, for a total price, mclud- 



1312 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

ing cooling and temperature recorder, of $3,384,55, f o b o The lei 
tuce was accepted by respondent on arrival at destination, and th 
total of the purchase price remains due and owing from respond 
ent. r 

11. The formal complaint was filed on May 4, 1984, which wa 
within nine months after the causes of action herein accrued. 

CONCLUSIONS 

Although respondent filed an answer denying generally the olle 
gaUons of the complaint, respondent submitted no further evidence 
m this proceeding. After filing the answer containing the general 

^ v re f^ d t nt ' S attornev sent a letter to an official of the Fruit 
Vegetable Division in which he stated in relevant part as to!- 

- . Please be advised that it is my client's contention that 
ne had a pre-existing arrangement with Frontier Packing 
regarding the "prompt payment" for the produce shipped. 
Frontier was to receive the sum of $500.00 per month OH 

E nCe , Ue ^ that WaS an agreement by and bo- 
the parties. 



aa ffled an penin g statement in which it 

forny t VD e 7n agree ? en ! WaS entered into betwee " tho parfe 
t *P~ schedule. Complainant stated in tho op* 

l , reSP ndent Sent ^P^iiant three $500.09 pay. 
complainant had returned tn r^n^H^i. i,L n ,. m L. 



SIX L'S PACKING COMPANY v. BARNETT BROKERAGE 1313 

Volume 44, Number 3 

Six I/a PACKING COMPANY, INC. v. WENDELL L. BARNETT d/b/a BAR- 
NETT BROKERAGE, Co, PACA Docket No. 2-6628. Decided May 
22, 1985. 

Complainant, pro se. 

Philip Wittenberg, Esquire, for respondent. 

Dennis Becker, Presiding Officer. 

Decision by Donald A, Campbell, Judicial Officer. 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). A 
timely complaint was filed in which complainant seeks an award of 
reparation in the amount of $6,009.50 in connection with the sale 
of four truckloads of produce in interstate commerce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties. A copy of the formal com- 
plaint was served upon respondent. Respondent filed an answer 
thereto denying liability to complainant. It also filed a counter- 
claim. Complainant filed an answer to the counterclaim denying li- 
ability to respondent. Since the amounts claimed as damages in the 
formal complaint and counterclaim do not exceed $15,000.00 the 
shortened method of procedure provided in section 47,20 of the 
Rules of Practice (7 CFR 47.20) is applicable. Pursuant to this pro- 
cedure the parties were offered an opportunity to file additional 
evidence. Complainant filed an opening statement. Although given 
an opportunity to file briefs, neither party did so. 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



f ann 

$210.00, and 150 carton if ??, & ^ f r a tolal P" 
a total price of $900 00 for T , f^** 8 at |6 ' OU " n "' 1 
On or about December 6 1983 h'h ^ f * IMM - f ' b 
hipped to an unknown dest naLnl 7" f"?* 1 *"* '"'<" lllre s 

5- On December 16 19OT ' ? mterstate mc ra . 
tM of 25 pound laree Zl T f^* S ' d to "^'"font I'M car- 
Price of $5?6.00 and^4 cttonnfpT at ^ * eart " '" 
"Btoes at $5.00 a carton fm- 1 L t f ^ 6Xtra '"W '"*" * 
^ 15 cents a carton for , ! fT. f $720 - 00 ' P |us Nlelfeing 
10 cents a carton for I O t, , /"f.of o^ 8 ' 20 ' and ""!'"<" A 
f ?1,368.00, fob On or 1 , n - ' f r 9 t0ta ' CO "" lnCt " rice 
" shipped to an unknownlfr Ce ? ber - ' 6 ' WSS ' th lolllllt< - 
On December 16 . dest natlon interstate coraiwaw. 
crates of super selpnt,', 7 com P laman t sold to res])on<lenl 100 
P CUCber 



es o super selpnt,, o res])on<enl 100 

KY5.00, and P 150 C n U s C on berS l' f, 6 ' 76 a Crate f '' a ^ ...... -ice of 

a total price of $1 o 12 L f ' ge ^ eI1 ,P e PP ers a t $6.75 a carton for 
f.o.b. .UU50, for a total contract price of $1,S87.SO, 



Paragraphs 3 throughV^ f r * he f Ur trans "ctions doscrik'd in 
id complainant any of'tht lum 8 Hpondont hm not 





this proceeding on May 6. 
action herein accrued m nths of the time ' s of 



DISCUSSION 

The SO!P ; gsue for . 

whaaed the comm d't ? roceedin ? is whetlior tho re- 

Or Wnpfliow l. _ uiiittJa Involved in nfl Fnnv ti-numi/^ 

* ""CLiier ne wa9 a h i T "" *** uuc ium iiciripiic 

complainant to a third Darfv T 7u reSp6Ct to a sale of fi ao[It! ^ 
ons involved a sale of m-7 . Proponent that tho ' 

an Of Dronf f P r aUCe tO rflfinnr,^r,l- 1_.. 



that 



nc 

shows th^'V, the Same address 
eSP ndent is the 



, an 

g the same 'teie? 8 d T m ? business from " 
ant i 

than 

also 



, 

a suit jn is aso understandable thnt 

seekmg to recover from B. J. Bar- 



SIX L'S PACKING COMPANY y. BARNETT BROKERAGE 1315 

Volume 44, Number 3 

nett, Inc., rather than respondent. That law suit was dismissed 
with prejudice as against B. J. Barnett, Inc., and a reparation pro- 
ceeding was filed against Wendell L. Barnett. Respondent's claim 
that the dismissal of the lawsuit with prejudice is res judicata 
against respondent is without foundation. The simple fact is that 
the parties are different in the two proceedings, and for res judica- 
ta to lie the parties must be the same. 

Respondent claims that Charles Harris, an employee of com- 
plainant, dealt with him with respect to the four transactions in- 
volved in this proceeding. He claimed that Mr. Harris knew that 
he was acting as a broker, and promised him brokerage of 25 cents 
a carton on all the commodities except for the tomatoes, and with 
respect to the tomatoes misled him by telling him that no one ever 
paid brokerage on tomatoes. Respondent further claimed that Mr. 
Harris asked him to handle the billings with respect to the four 
transactions as a convenience and accommodation to complainant. 
Respondent also claimed that prices were adjusted with respect to 
the transactions after their receipt by the firm to which they were 
shipped. He also said that he sent a check to complainant showing 
that he was only a broker. The trouble with respondent's claims in 
the first instance is that he provided no documentation whatsoever 
in support of his statements. If respondent truly did send a check, 
he should have put a cancelled copy thereof in evidence. If the 
prices were adjusted after receipt, there should have been some 
documentation reflecting such adjustments. If he truly were a 
broker, he was required by regulation to provide broker's memo- 
* n a i nw R AR 9 n HPR 8 4fi 9.Wnl states in pertinent part 



1316 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



D eroV y the act 

pei form his express or implied duties. 






be awarded to complainant with interest. 

ORDER 

nirty days from the date of this order 

aUh^rte ofls^n ^ ^f 11 ' $6 ' 09 ' 50 ' With intei ' est the1 ^ 
at me rate of 13% per annum from January ^ ^ ^ ^^ 



v. EMERSON H. ELLIOTT 
-UOTT o DUCE , PACA Docket No. 2-6Y85. DecWed^y'^ 

Complainant, pro se. 
Respondent, prose. 

Decision by Donald A. Campbell, Judicial Officer. 



KNIGHTEN'S TOMATOES v. EMERSON ELLIOTT PRODUCE 1317 

Volume 44, Number 3 

32707. At the time of the transaction involved herein, respondent 
was licensed under the Act, 

The facts alleged in the formal complaint are hereby adopted as 
findings of fact of this order. On the basis of these facts, we con- 
clude that the actions of respondent are in violation of section 2 of 
the Act (7 U.S.C. 499b) and have resulted in damages to complain- 
ant of $2,355.00. Accordingly, within 30 days from the date of this 
order, respondent shall pay to complainant, as reparation, 
$2,355.00, with interest thereon at the rate of 13 percent per 
annum from October 1, 1984, until paid. 



KNIGHTEN'S TOMATOES, INC. v. EMERSON H. ELLIOTT d/b/a EMERSON 
ELLIOTT PRODUCE, PACA Docket No. 2-6788. Decided May 22, 
1985. 

Complainant, pro se. 
Respondent, pro se. 



1318 

"luonAtfLE i 

Volume 44, Number 3 



as 



SIGMA PRODUCE Co T 

No. 2-6456. b eoid ed Ju^e PRODUCE ' IN " PACA 

Complainant, pro se 



DEC 'SrONANDOHDER 



under the PerishaWe 

co mp l aint . amended (7 U.S.C. 499a 

t.on a ward aga . nat ^p^^J 1 "* complainant seeks a repara 



was on pa r t e A ga n P / 6pared ^ th ^ Department 



the shortened method opr cMf, amageS does not ex ^ed $15,000 00 
Rules of Practice (7 CPR 47 on, 6 P ? vided in Action 4720 of the 
cedure, the parties ^^ k f b ^ Pursuant to such p ! 

PWDINGS OF PACT 



f r to -Pendent a true*- 

tomatoes at $6.00 per 



SIGMA PRODUCE, INC. v. CARUSO PRODUCE, INC. 

Volume 44, Number 3 



1319 



tioi., 528 flats of 5x6 tomatoes at $5,50 per flat, 540 lugs of 7x7 
tomatoes at $4.00 per lug, and 36 cartons of cucumbers at $10.00 
per carton, plus $618.00 for pallets and precooling, for a total of 
6,834.00, f.o.b. A bill of lading was prepared which indicated that 
a 46F. transit temperature was to be maintained. 

4. The produce was shipped to respondent and arrived on Febru- 
ary 21, 1983. Early the next morning, February 22, 1983, the toma- 
toes were federally inspected, which resulted as follows, in relevant 
part: 



WHERE INSPECTED 
Products Inspected: 



Condition of Load: 
Condition of Pack: 
Temperature of Product: 
Condition: 



Receivers Warehouse 

TOMATOES in cartons printed "Sigma, 
Sigma Produce Co., Inc., Nogaies, Ari- 
zona, Produce of Mexico", and 
stamped to denote size (size 55, 56, 77 
noted), also stamped with various 
numbers. Inspectors count 1,200 car- 
tons. 

Stacked at above location. 
Fairly tight to tight. 
Ranges from 55 to 59"P. 

55 size lot: Average approximately 40% 
light red and red. Soft ranges from 32 
to 44%, average 38%. Decay ranges 
from 20 to 24%, average 22%. Aver- 
age 2% damage by sunken discolored 
areas, generally occurring over shoul- 
ders. 

56 size lot: Average approximately 5% 
turning and pink, 45% light red and 
red. Soft ranges from 8 to 28%, aver- 
age 22%. Decay ranges from 4 to 
66%, average 26%. Average 3% 
damage by sunken discolored areas, 
generally occurring over shoulders. 

77 size lot: Average approximately 45% 
light red and red. Soft ranges from 24 
to 76%, average 42%. Decay ranges 
from 4 to 28%, average 14%, 



5. Respondent spent 40Vfe hours repacking the tomatoes. Respond- 
ent then dumped 67 flats of the 5x5 tomatoes, 230 flats of 5x6 to- 
matoes, and 290 lugs of the 7x7 tomatoes. 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



be due and 

$6,728^,0 
and owing 



com P lainant 
Which 



. leaving 
claims to 



elama in its counterclaim to be due 



herein a rued 
matter of H 



, rid* 

telv ?" ^^ CaUSe f 

y c outerclaim concerning the 

along with 



CONCLUSIONS 



spondent's 
ed 

cucumbers but contend 
, and 



produce arrived at - 

81 ' 1983 ' and was ac ^P'- 

" traCt pHce f r the 
W6re in breach of 



d mages 
Clara Produce h c 
(1982). 



due to an * breach 

rden f 
rep nderance of the evidence. 

41 Agric. Dec. 22V8 






rans P 

"T" dehvery without deterioration at 

February 



at 8:35 a.n, on 
warranty of 

meaning thrt i. ^ ta ? CFR 46 ' 42 ' fls 

Oon which, if the y 6 tme of billin S. is in 

^ervice and 
the contract 
22, 1983, i 

6 the 5X5 tomatoe s 22% soft nd 

toes, and 42% soft and u ^ , 6% decay for the 6 >< 6 

ant claims iC the p Voi tel'" ^ ?X7 t0mat eR Com P lail1 - 
report, 55 to 59'P fc^T temperature noted in the inspection 

tins or improper s'toraw hi abnormal transportation condi- 

the bill of lading 7hows ^ ST*?' *** t0 the inspectio11 ' as 
d g transit. Lwev r even ^f ?," W6r6 to be ke P* at 46>F ' 
higher than one would 6!^^ the product '"mta ta 
expect if the transit temperature had been 



SIGMA PRODUCE, INC. u. CARUSO PRODUCE, INC. 1821 

Volume 44, Number 3 

maintained at 46F. and the tomatoes been properly stored by re- 
spondent, the product temperature would have to have been much 
higher for the extremely poor condition of the tomatoes to have re- 
sulted from abnormal transportation conditions during the four 
days in transit or from the one day of storage. There is thus no 
doubt that there was a breach of complainant's suitable shipping 
condition warranty in this case. 

As damages resulting from complainant's breach, respondent is 
entitled to the difference at the time and place of acceptance be- 
tween the value of tomatoes if they had as been as warranted and 
their actual value, plus any incidental damages. Pleasant Valley 
Vegetable Co-op v. Robt, T, Cochran & Co., Inc. Agric. Dec. 1208 
(1982), For the value of the tomatoes as warranted we look to the 
February 22, 1983, Market News Service Reports for Seattle, Wash- 
ington, the place closest to Portland, Oregon, where respondent ac- 
cepted the tomatoes, which publishes Market News Service Re- 
ports. The Seattle reports are a generally accurate reflection of the 
market prices of commodities at Portland. The reports show the 
5x5 tomatoes selling from $11.50 to $13.00 per flat, the 5x6 toma- 
toes from $11.50 to $13.00 per flat, and the 7x7 tomatoes at $10.25 
per lug. The value of the 132 flats of 5x5 tomatoes, at $11.50 per 
Oat, would have been $1,518.00, the 528 flats of 5x6 tomatoes, at 
$11.50 per flat, would have been $6,727.00, and the 540 lugs of 7x7 
tomatoes, at $10.25 per lug, would have been $5,535.00, a total of 
$13,100.25. The actual value of the tomatoes accepted is determined 
by the results of a prompt and proper resale. Green Valley Produce 
Co-op v. Nicholas J. Zerillo, Inc., 41 Agric. Dec. 519 (1982). Howev- 
er, in this case, respondent has failed to provide any evidence of 
resales. Therefore, we cannot conclude that respondent resold these 
tomatoes. Respondent has provided evidence, in an affidavit by a 
David R. Burns, to support its claim that it dumped 67 flats of the 
5X5 tomatoes, 230 flats of the 5x6 tomatoes, and 290 lugs of the 
7x7 tomatoes. Mr. Burns states that between February 23, 1983, 
and March 7, 1983, at respondent's request, he dumped 590 boxes 
of tomatoes, which had complainant's name on each box. It is clear 
that these tomatoes were those which respondent claims to have 
dumped. The dumped tomatoes obviously were without value. The 
actual value of the tomatoes which respondent did not dump is 
their market value, as determined by the Market News Service Re- 
ports, which we have previously found to be $11.50 per flat for the 
65 flats of 5X5 tomatoes, $11.50 per flat for the 298 flats of 5x6 
tomatoes, and $10.25 per flat for the 250 lugs of 7x7 tomatoes, for 
a total of $6,636.70. The difference between this figure and the 
value of the entire load of tomatoes as warranted, $13,100.25, is 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



a e co p 
ing the tomatoes in Z com P e " s , ate d " its expenses in repack 

S12.00 per hou Thi s a T* ^^^ ^^ 40 * h 
Respondent contend, ^ that clnl , ^T a " d wi " be 
Pce of the tomatoe whth ha'd tT'/ alS J iable f r t 



v. G H. on 2 n ' ' . 

damages are, Sore SfiTfi, ^ 49 ^ J 1970) ' B5denrt total 

The contract pSe for ?1 f P J W86 ' ' r $6 ' 949 ' 55 ' 
damages of $6,949.55 excedthP^r 3 7 . $6 ' 414 '- Res P^"^ 
ent admit* o^g compT a Lnt thf ^t P "f 6 ^ * 535 ' 55 ' Hes P nd ' 
bars, or $420.00 This^Zl , C ntract price for the <"""n- 

this figure ^ustlea d UC he C $^ T3o nt l U , abiHty t0 $115 ' 55 - T 
feady paid compJainant. The total o^tefi^f r ( t spondent llas * 
is owed to respondent hv ^ , * 2 ' 61 6-85 is the amount which 

Pay this sum I a vllauL T la : nant ' and ^^P'ainant's failure (o 
on shouJd be aJS^ 2 of the Act, for which repa,,- 



ORDER 

Pay to respondent, f % a > .^^Plainant shall 
of 13% per 



Whitten, Presiding 

c amp 

MC ISION AND ORDER 



sa , Agricultur- 

complaint lw ^ fiIed '. as ded (7 U.S.C. 499a et vJi A 

which complainant sought an award 



L-SHANG'S, INC. v. GWIN, WHITE & PRINCE, INC. 1323 

Volume 44, Number 3 

of reparation in the amount of $16,000.00 against respondents in 
connection with the shipment of apples in foreign commerce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties. A copy of the formal com- 
plaint was served upon respondents. Each respondent filed an 
answer to the complaint denying any liability to complainant. 

The amount claimed in the formal complaint does not exceed 
$15,000.00. Accordingly, the shortened method of procedure provid- 
ed in section 47.20 of the Rules of Practice (7 CFR 47,20) is appli- 
cable, Under this procedure the verified pleadings of the parties 
are considered a part of the evidence herein as is the Department's 
report of investigation. In addition the parties were given the op- 
portunity to file evidence in the form of sworn statements. Com- 
plainant filed an opening statement, both respondents filed answer- 
ing statements, and complainant filed a statement in reply. None 
of the parties filed a brief. 

FINDINGS OF FACT 

1. Complainant, L-Shang's Inc., is a corporation whose address is 
444 West Shaw, Fresno, California. 

2. Respondent, Gwin, White & Prince, Inc., is a corporation 
whose address is Wedgewood Street, P.O. Box 15317, Seattle, Wash- 
ington. At the time of the transactions involved herein this re- 
spondent was licensed under the Act. 

3. Respondent, Cascoa Growers, is a corporation whose address is 
102 Woodring Street, Cashmere, Washington. At the time of the 
transactions involved herein this respondent was licensed under 
the Act. 

4. On or about December 29, 1982, respondent Gwin, White & 
Prince Inc., acting as agent for respondent for Cascoa Growers, con- 
tracted to sell to complainant five containers of Lake Wenatchee 
brand red delicious apples, extra fancy grade, to contain a total of 
5,000 cartons at an average price of $9.52 per carton, or a total 
price of $47,600.00. The terms of the contract were f.o.b. shipping 
point, meaning that complainant took possession of and title to the 
apples at shipping point, and shipped them to destination in 
Taiwan. In addition complainant paid the full purchase price of the 
apples prior to shipment. 

5. The apples were shipped from respondent Cascoa Grower's 
warehouse in Cashmere, Washington on January 6, 1983, to com- 
plainant in care of American President Lines, Seattle, Washington. 
On January 9, 1983, the apples were laden on board the "PRES. 
TAFT, V, 119" and shipped to Taiwan. 



PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



1324 



Gwin ' wwte ' 

number of cartons "? C " tainer showin S th <= total 

the partie Th e data h "" "'u^ 8S agreed upon 
pertinent part 1 '^ n SUCh manifests is set f rth 
tains, Als'o no S h i n r T T? ! nformation each 
each contl " are 1 ^" braCketS ' f r each 

n 



con- 



CONTAINER 
APLU 962844 

APLU 963390 
APLU 963158 
APLU 963367 

APLU 962922 



TOTALS 



TOTAL OVER/ 
UNDER 



inn n 

100 330 150 267 






50 100 3 1000 



[9'I] [341] [128] [288] [47] [100] [3 J 

100 330 150 267 50 100 3 1000 



[233] [145] [626] [3] [1007] 
250 147 600 3 1000 




[18] [49903 
817 1120 348 859 17 5000 



-70 +55 +12 



_ n _ 



.0 for the 

$9-52, the parties were a. ??* aVeraffe per Carton P rke of 
cording to size of carton * * ? a PPlicable price structure, ac- 
Price structure the toil in the chart above - Using such 

ta and quantities h^LenTn ^ 6 ' Cartons f apples ' if 
have been $47,74650 Uqinrt, accordance with manifests, would 
the cartons actually 'received t ^ Price sfcructure ' the '^ of 
difference of $168.50. Wan would be $47,588.00, or a 

filed on June 17, 1983, which w* 
cause of action alleged herein ac 



L-SHANG'S, INC. u. GWIN, WHITE & PRINCE, INC. 1326 

Volume 44, Number 3 

CONCLUSIONS 

Complainant brings this action for the recovery of lost profits 
due to the rejection of the five containers of apples by its customer 
in Taiwan. Complainant states that it resold the apples to Berlin 
International Taiwan Corp. for $67,350.00. In addition complainant 
states that it has received $47,000.00 in net proceeds, and that a 
remaining $6,861.10 of net proceeds are still currently held by the 
Taiwanese corporation, and will be released to complainant. Com- 
plainant thus seeks to recover a total of $13,488.90, being the differ- 
ence between the net proceeds from the resale of the apples in 
Taiwan, and the $67,350.00 price for which it originally sold the 
apples to the Taiwanese corporation. It is thus clear that complain- 
ant is seeking recovery of lost profits. We have long held that re- 
covery of lost profits cannot be allowed where a seller has not been 
informed of the resale contract, Ruby Robinson Co., Inc. v. Belson, 
37 Agric. Dec. 185 (1978); A. G. Shore Co. v. Conner Brothers, Agric. 
Dec. 1269 (1959); and Quality Potato Co. v. Cooney & Korshak, 13 
Agric, Dec. 1104 (1954). Complainant has not shown that there was 
any knowledge on the part of respondents concerning its resale 
contract to Berlin International Taiwan Corporation. 

It remains to be considered whether damages may be computed 
in complainant's favor by any other means. Respondents contend 
that complainant has failed to prove by neutral third party evi- 
dence that the differences in count actually existed. However, both 
respondents admitted in separate letters to complainant, in the 
middle of February, 1983, that there were discrepancies in the load- 
ing manifests. For example respondent Gwin, White & Prince, Inc., 
stated in a letter to complainant on February 18, 1983, in relevant 
part as follows: 

I have discussed the manifest errors with Roger Case the 
General Manager at Cascoa Growers. As you can imagine, 
Roger was extremely embarrassed and angered by the 
careless attitude his loading foreman has been displaying 
lately. Yours is not the first problem Roger has had and I 
think the way the foreman handled your order will prob- 
ably cost him his job. 

Roger explained that they had to change the manifest 
because they did not have enough satisfactory fruit in all 
sizes and he did not want to send fruit that would have 
been disappointing. Unfortunately, the loading foreman 
did not count the fruit being loaded into each container. 
After the containers were loaded, he simply copied the fig- 
ures from the orders onto his shipping manifests. As your 



1326 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



"""*' 



vised by Cas oa G r, %K Tf,' ama ^ maintainS that " s * 
the ln?rjr, , u ^ rder could not be 



the growerte 

sons, which will I ZL ? * y com P lainant - For a number of roa- 
factuafdfepute PP ater ' '' iS n0t necessar y that Decide this 



aat 
timely fashion IndL A j ' SU h re J ection was made in a 

from such custo VldenCe indicates the wntrar ^ A 



.earvedusm i a * 

contained in the leC J j However . the notice of rejection 

arrival, and therlfnlt "J 3 ? at Ieast two da y s Allowing such 

' e 6f r ' 



i> any claimed rejection on tf"'/ m re Seri U8 proU 
'hat there is no recL 7 Part f com P la mant, however, is 

spondents following arri? P fT P reje tion by com P la 'n a nt to re- 
of these obsem Zri? ^ VeSSel in Taiwan ' Ho r, both 
rejection in San VTfinT^f "f" Wa8 legal ^Portunit, for 
of the Contract adS ^ ^ WaS n0t the ase ' Under the 
apple, al *S S ^ / the parties ' co Pl a inant accept- 

' reiect such a Pg0nd t JV" e ? n) Could not subse - 

' sectlon 2-607(2). 



n ., - 

it o*i .! appllcable ""der limited circum- 
rejection, there is certainly no requirement 



L-SHANG'S, INC. u. GWIN, WHITE & PRINCE, INC, 1327 

Volume 44, Number 3 

for perfect tender in regard to accepted goods. Accordingly, unless 
the variances in quantity disclosed by the inspection in Taiwan 
amounted to a material breach of contract, there was no breach for 
which complainant may receive damages. While some of the con- 
tainers of apples showed a wide variation from the manifest, the 
total variation for all five containers was not so great. The five con- 
tainers were all shipped at the same time, and were delivered at 
the same time to the same customer in Taiwan. Accordingly, the 
total variation for all five containers is the pertinent fact for our 
consideration as to whether there was a material breach of con- 
tract. It is evident that complainant's customer was able to use all 
of the sizes which were ordered and delivered. The greatest vari- 
ations were in the size 72 and size 80 containers, the size 72 being 
70 containers short from the manifested 560 containers, and the 
size 80 showing 55 containers in excess of the 1,279 containers 
manifested. The remaining variations from the total on the mani- 
fests are clearly insignificant. Complainant had the burden of prov- 
ing a breach of contract, and consequently also the burden of prov- 
ing that the variation was material. Complainant has not shown 
any reason why such variation should be taken as a material 
breach* and we conclude, therefore, that there was no material 
breach of the contract. 

Cascoa Growers previously offered to make a price adjustment of 
?1 58.50 based on the claimed variance in count in Taiwan. Since 
we have found that such variance did exist, complainant should be 
awarded reparation in such amount, but without interest. The com- 
plaint as against respondent Gwin, White & Prince, Inc., should be 
dismissed, 

ORDER 

Within 30 days from the date of this order respondent Cascoa 
Growers, shall pay to complainant, as reparation, $158.50. 

The complaint against respondent Gwin, White & Prince, Inc., is 
dismissed. 



1328 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

J. A. WOOD CO-VISTA, INC. v. MENDEZ BROS. PRODUCE COMPANY, 
PACA Docket No. 2-6598. Decided June 3, 1985. 

Failure to pay Decision. 

Thomas R. Oliueri, for complainant, 

Richard H. Moll, Esquire, San Antonio, TX, for respondent. 

Decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.l A 
timely complaint was Filed in which complainant seeks an award of 
reparation against respondent in the amount of $8,837,40 in con- 
nection with the sale of one truckload of lettuce in interstate com- 
merce. 

A copy of the Department's report of investigation was served 
upon the parties. A copy of the formal complaint was served upon 
respondent which filed an answer thereto denying liability to com- 
plainant. 

The amount claimed as damages in the formal complaint does 
not exceed $15,000, and the shortened method of procedure provid- 
ed in section 47.20 of the Rules of Practice (7 CFR 47.20) is there- 
fore applicable. Under this procedure the verified pleadings of the 
parties are considered a part of the evidence as is the Department's 
report of investigation. In addition the parties were given an oppor- 
tunity to file evidence in the form of sworn statements. Complain- 
ant filed an opening statement, and respondent filed an answering 
statement. Complainant did not file a statement in reply. Com- 
-lainant filed a brief. 

FINDINGS OF FACT 

1. Complainant, J. A. Wood Co-Vista, Inc., is a corporation whose 
ddress is P.O. Box 9069, Phoenix, Arizona. 

2. Respondent, Mendez Bros. Produce Company, is a corporation 
rhose address is 501-506 Produce Terminal, San Antonio, Texas, : 
it the time of the transaction involved herein respondent was li- 
ensed under the Act. 

3. On or about June 3, 1983, complainant sold through Touch- 
tone & Associates, acting as broker, to Fleming Foods of San Anto- 
iio, Texas, one truckload of lettuce conaiating of 858 cartona at 
18.00 per carton, plus $.70 per carton cooling, and $.15 per carton 
irokerage, or a total price of $7,593.30, f,o,b, : 

4. On June 3, 1983, complainant shipped the lettuce covered by 
Binding of Fact 3 to Touchstone & Associates in San Antonio. Pol- 



J A. WOOD CO-V.STA , MENDEZ BROS. PRODUCE COMPANY 
V Volume 44, Number 3 



1329 



arrival on June 6, 19 83, at 12:35 $ 
any inspected at the place of business of Fleming 
found to have an average of 16 / damage y 

discoloration in the wrapper le ~"f , a ^ n d 2% damage by 
by red discoloration 4% damage _ by trpburn, a ^.^ 

the lettuce was .aced on 



H -id ^ 5 B ^ 

plainant, and pay the $1.51) ireig mf > comp i a inant expressed 

the broker reported this to ^P 1 ^* ^ r P espon dent must be 
dissatisfaction, and stated that any . * e * <rom P complafa . 

r^-t^xKt^T-r ^88, 6 0, b. did not 
5 *nd any supporting documentation. ber 27 , 1983, which 



CONCLUSIONS 

Co.pl aUege, that itis entitled to *e 
the letLe sold by respondent wh oh t state ^ nono 

carton based upon Market ^ws reports to ^ ^ 
marke t at the time of J^' *f^ "J, wa s contacted by the 
,ueut to the rejection of ^ "ff^^the parties was that re- 
broker, the agreement Cached between P g price aft 

S pondent should be allowed to handl eto W^ ^ Jun(j _ 1983 , 
S ale basis. In addition, respondent allege $ ^ ?er ton 

complainant agreed to accept $ 1.50 pe r ca ^ to these conten- 



spondent'B contention that complamant ^r ^ ^^ ^ 

plus $.70 cooling per carton, for the let on j 17 

together with a memorandum issuec ^ by ^ entered 

both fall short of supporting the v.ew ^ ^^ ^ , n t 
into a new contract that ^t s tlement and memo were taken 
offered by respondent. Even if the statem guch n t 

to support an agreement by "^Conditional upon receipt of 
the agreement could only be viewed as ed ffl a t e iy 

supporting documentation which ^ n^ ^ ^ rf ^ evldenoe 
t. We tma 



supporting aocunum^", 
fashion by respondent. We find on 



1330 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



entitled to the normal returns 

During the formal stages of this proceeding respondent furnished 
aocumentahon, in the form of a detailed accounting of the resale of 
tne lettuce, showing gross proceeds of $4,288.25 from the sale of 
7H/ 2 cartons of lettuce. The accounting also shows that 146'/, car- 

anH^pL i^ R f spondent ^^^d no dumping certificate, 
and the federal inspection at destination will support no more than 
o% dumpage on this load of lettuce, or a total of 43 cartons The 
average sale price for the 711% cartons of lettuce was $6.03 per 
carton. Allowing a dumpage of 43 cartons, and multiplying th/av- 
eiage sale price of $6.03 by the other 815 cartons, yields construct- 
ed gross proceeds of $4,914.45. 

Unfortunately respondent did not submit any detailed break- 
down of its expenses. We, therefore, will allow respondent a 15% 
handling charge, plus freight in the amount of $1.50 per carton 
rnteen percent of the gross proceeds amounts to $73717 and 

nLn fT" / 858 art0ns amounted to $1.287.00. Respondent's ex- 
penses therefore totaled $2,024.17. This amount deducted from the 
constructed gross proceeds of $4,914.45, leaves $2,890,28 as the net 
?n!f j . u r f spondent should have reported to complainant, 
balanc j f alread ? paid complainant $1,887.60, which leaves a 
nl ' T5 u ^'" still due and owing from respondent to com- 

a vini"*' e pondent ' s fail ure to pay complainant such amount is 

aw3TH? Se< ; tl0n 2 f the Act for which reparation should be 
awarded to complainant with interest. 

ORDER 

30 days from the date of this order, respondent shall pay 
'""mt, as reparation, $1,002.68, with interest thereon at 
& per annum from July 1, 1983, until paid. 



n ' INC ' v - WEST AST aon 

Docket No. 2-6797. Decided June 3, 1985. 

Derision by Donald A. Campbell, Judicial Officer, 

' ***** the P^able Agricultur- 

amended (7 U ' S ' C - 49 ^ ? "9* A 
which com P^^ant seeks a repara- 

wp in the - amount of $1 ' 337 - 50 in - 

of the formal n? . 10ns ln interstat e commerce. A copy 
iormal co m pl ain t TO mM)d upon respondentj which ^ 



FRUIT DISTRIBUTING CORP. v. GARY D. HARNEY CO. Y 1331 

Volume 44, Number 3 

an answer thereto, admitting the material allegations of the com- 
plaint, including the indebtedness claimed by complainant. Accord- 
ingly, the issuance of an order without further procedure is appro- 
priate, pursuant to section 47.8(d) of the Rules of Practice (7 CFR 

47.8(d)). 

Complainant, Denice & Felice Packing, Co., Inc., is a corporation 
whose address is 10001 Fair-view Road, Hollister, CA 95023. Re- 
spondent, West Coast Produce Sales, Inc., is a corporation whose 
address is P.O. Box 3072, Visalia, CA 13277. At the time of the 
transaction involved herein, respondent was licensed under the 
Act. 

The facts alleged in the formal complaint are hereby adopted as 
findings of fact of this order. On the basis of these facts, we con- 
clude that the actions of respondent are in violation of section 2 of 
the Act (7 U.S.C. 499b) and have resulted in damages to complain- 
ant of $1,337.50. Accordingly, within 30 days from the date of this 
order, respondent shall pay to complainant, as reparation, 
$1,337.50, with interest thereon at the rate of 13 percent per 
annum from October 1, 1984, until paid. 



FRUIT DISTRIBUTING CORPORATION v. GARY D. HARNEY d/b/a GARY 
D. HAUNEY COMPANY, PACA Docket No. 2-6502. Decided June 
14, 1985. 

Failure to pay Decision. 

Comptainant shipped produce to a third party and the produce was damaged, No 
Federal inspection was done to prove the amount of damage, and third party accept- 
ed this produce on consignment which he alleges indicates a new agreement. His 
attempts to pay less than the original price was rejected by the complainant. Al- 
though affidavit was submitted by a neutral party attesting to the poor condition of 
the delivered produce, this is not acceptable as a legitimate inspection and com- 
plainant is awarded payment of the original price. 

Complainant, pro ae, 

Lisa Mendelsohn, Salinas, CA, for respondent. 

Dennis Becker, Presiding Officer, 

Decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur 
al Commodities Act, 1930, as amended (7 U.S.C, 499a et seq,). A 
timely complaint was filed in which complainant seeks an award of 



1332 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



ection wi 



served up n T^TeT^nT f the fermal C mpiaint 

Mfun iet>|junaent which nlpH nn anc-nm 4-u LI . 
ability tn pnmnU,- * ""'"-'i "iea an answer thereto denying If. 

j <f\j v^uiiiuifcUnsnti nPnanao fVia nn-. n .^_j. _i i . 

was less then Sl'snnn tii v, amount claimed as damages 

in section 47 20 nf , T?, 6 ] sho ^ ned _ met hod of procedure provided 

Although given anTnnn T^ St j atements - Nei ther party did so. 
ugn given an opportunity to do so neither party filed a brief. 

FINDINGS OF FACT 

at 746 South Central Avenue, LOB Angel'eTcalifor" 



arnec D . 

Marian Way fCL T? * 7' th an address at 6515 
volved in tW 8 pr o e c " X d' in " Z na ' ^ the time of the fan.acti in- 
3. On June 281=^ S re , Spondent was "^nsed under the Act. 
of jumbo yel O w' on 8 n 3 l COmP -' amant S ld to res Pnde,xt a truckload 
total contL pri ce r$30ir m ? 1 9 SWks at $3 ' 35 a sack a 
date from California to D P R ^ "^ ^ sh!pped on that 
viHe, Texas wh e l Ll , Uyn Pr duce Com P an y in 

refu ad b" uvn P-I r- J " ly J> 1983 ' The ^ wera 
a high perc^e 'f decy ^^^ 3t that 10Cati n 



that the receiv- 

Pany renegotte ed the T^ a " d De Bru ^ n Produce C "" 

handle the onions tc Tse I t f * ?"" De BrUyn Produce 

"" price on 

accepted 



tracted $270 for unlori ' m tis amount De 

r-pondent. 

sack for the onions as lts com ssion at $.15 a 



1883, wh e W l in f * ma - on December 5 , 

herein accrued, m nths of the me the cause of action 



FRUIT DISTRIBUTING CORP. u. GARY D. HARNEY CO, Y 1333 

Volume 44, Number 3 

ORDER 

This proceeding involves a situation in which the purchaser of 
the perishable agricultural commodity involved never saw it, but 
rather had it shipped directly from the seller to a third party, De 
Bruyn Produce Company of Farmersville, Texas, which initially in- 
dicated it would reject the load, but which later agreed to accept it 
on consignment. Baaed on the record in this case, we find that the 
complainant should prevail. 

Because respondent accepted the truckload of onions through the 
third party receiver, De Bruyn Produce Company, respondent has 
the burden of proof to show that the onions which were delivered 
were of poor quality. Theron Hooker Company v. Ben Gatz Co., 30 
Agric. Dec. 1109, 1112 (1971). Normally this is done by the provi- 
sion of an inspection certificate which shows the percentage of 
decay and other condition defects which were present at the time 
of the arrival of the shipment. In this case, however, respondent 
could not secure such an inspection because the goods arrived on 
the Friday before the Fourth of July; i.e., July 1, 1983, the inspec- 
tion service was 80 miles from the point of receipt in Farmersville, 
Texas, and the onions could, therefore, not be inspected until Tues- 
day, July 5, 1983. Rather, respondent relied upon an affidavit sub- 
mitted by an individual who had been a federal inspector for a 
number of years. Mr. Robert Tingley was an employee of De Bruyn 
at the time the goods arrived in Farmersville, Texas. He looked at 
the onions and saw that they were greatly decayed, which was un- 
controverted by complainant. Although there was no formal inspec- 
tion taken, he stated in his affidavit, that he performed an inspec- 
tion similar to that done by the federal inspection service, and 
found that the onions averaged 44% decay. 

Mr. Tingley stated in his affidavit that he relayed the informa- 
tion to respondent immediately. Furthermore, he stated that an 
hour after he told respondent of the condition of the onions re- 
spondent called back and told Mr. Tingley that he had entered a 
new agreement with complainant that De Bruyn could sell the 
onions for the "best possible price on consignment". Mr. Tingley 
said that it is on the basis of that representation by respondent 
that De Bruyn was willing to accept the load of onions and do the 
best it could with them. However, there was no showing that com- 
plainant agreed to a modification of the contract, and complainant 
denies such was the case. Rather, it claims that it insisted on a fed- 
eral inspection. Under such circumstances the inspection by Mr. 
Tingley cannot be accepted as prima facie evidence of the truth of 
the condition of the onions. Only federal inspections have such 
status. See 7 U.S.C. 499n(a). Indeed, although the issue has not 



1334 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



aft p in which P* ac- 

after an inspection by other than the federal inspection 

h8S been dealt With in situations * hich p od i" 

when 



consideration will be given to other evidence such as ir, 
spection and certification made by any two persons having 
no financial interest in the produce involved or in the 
business of any person financially interested therein, , . . 



' No other 

requ ~ t e Cannot im P se a taw 

requirement as to the condition of produce which is received under 

the circumstances existent here than those which exist "hen 

- Finally> an inspection c uid 



accountin S in w hich it showed that it 

S t0 a Peddler at a - 16 P 61 ' 
for uloa a an )? Un e B y ded ^ted $270 for its 



$1 035 Peddler at a - 



ni ns ' 

and ff f ' WaiV6d itS Claim to a ' a 

was r;^/^ w ed a * eck for * 765 t" complainant, which check 
Z ?1 Subsequently, respondent claimed the $135 for broker- 

6d a CheCk f r $63 to Complainant, which 

there is no showing that 



e find that ^P<>ent owes 
2 of , Pay this amount is a 

' ' ""* re P arati <*ould be 



with interest. 

ORDER 

o^nmn? 3 d ! yS fr m the date of this Order respondent shall pay 
: he rate nM^ M reparation ' 52,385.00, with interest thereon at 
rate of 13% per annum from August 1, 1983, until paid. 



J PRODUCE DiSTumuroHS, PACA 

Decided June 14, 1985 

se Tt" accep ' ed tomatoes sh w rf to ^ A "8*= 
pandsnt s dprt, of h. "', ^ f^'" f these tomate "P"" " " 
hipped to a tLdlrtv n H ^"T in Los A "^ and the renrni.dor , 
but the d cay S',""'!' Federal in6 P Kti *owed decay ir the ship, 
decay was not excess, and the tomatoes made good delivery to Im 



PACIFIC TOMATO GROWERS v. CROWN PRODUCE DISTRIBUTORS 1335 
Volume 44, Number 3 

Angeles. Respondent has failed to prove a breach of contract and respondent is or- 
dered to pay the originally agreed upon price. 

Leroy Gudgeon, for complainant. 
Respondent, pro se. 

Edward M. Silverstein, Presiding Officer, 
decision by Donald A. Campbell, Judicial Officer. 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et se.?.). A 
timely complaint was filed in which complainant sought an award 
of reparation against respondent in the amount of $11,060.10 in 
connection with the shipment in interstate commerce of a truck- 
load of tomatoes. 

A copy of the report of investigation made by the Department 
was served upon the parties. A copy of the formal complaint was 
served upon respondent, which filed an answer thereto admitting 
liability in the amount of $4,866.45, and denying liability to com- 
plainant for the remaining sum of $6,193.65. On August 10, 1984, 
an order was issued requiring the payment by respondent, to com- 
plainant, of the undisputed amount of $4,866.45. Respondent's li- 
ability for payment of the disputed amount was left for subsequent 
determination in the same manner and under the same procedure 
as if no order for the payment of the undisputed amount had been 
issued. 

The amount claimed in the formal complaint does not exceed 
$15,000.00, and the shortened method of procedure provided in sec- 
tion 47.20 of the Rules of Practice (7 CFR 47.20) is applicable. 
Pursuant to this procedure, the verified pleadings of the parties are 
considered a part of the evidence in the case, as is the Depart- 
ment's report of investigation. In addition, the parties were given 
an opportunity to file evidence in the form of sworn statements. 
Complainant filed an opening statement. Respondent did not file 
an answering statement, Complainant filed a brief. 

FINDINGS OF FACT 

1. Complainant is a partnership composed of Pacific Packing 
Company (a corporation) and Esformes Enterprises (a partnership), 
doing business as Pacific Tomato Growers, whose address is 503 
10th Street, Palmetto, Florida. 

2. Respondent, Crown Produce Distributors, is a corporation 
whose address is 5040 South Alameda Street, Vernon, California. 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



involved herein 






be US No 2 ^ that the Vict '* b ' d 



12 1 Qsq T* , e made on the morning of oveme 

12 1983 It was also agreed that the tomatoes would be gassT 



m r he , duled to be 

time. The tomaCl ? ',, trUck was not available nt that 
bar 12, 198 f L W ri ere ""^ shi PP ed a * ^.-00 p.m. on Novem- 

in Los'AngLt CaitZ P mt " Palmett ' F1 rida ' to reSp <ient 

in Ve^nSl^Xtr? 4 T^ 6 "'' 8 P la ^ -f bu,ln, 
Federal inspeotbn nn M 1 brand tomatoes were sub J ected ! 
on showed hat thp ?T er , 15 ' 1988 ' at 1:25 P' m ' Th ^ ^P* 
were stalked at th.n,*^ had ahead * been ^"W. "" 
noted that he a pp?Lnt a r; f , bUSineSS f res Pndent. It was ,1 SO 
tomatoes. Cta f^ ' hat there were 144 cart " s f 

B8 to 62T aL Z oua l T P dUCt W3S sh Wn to rai e f ' om 

--% we i, 1* a ^ h ^;-ftated to be "clean, well-developed, 

age 9% mos% , misshapen" ?h y ,? 0th - Grad ^efe C te aver- 
stated to 'be.asMo condl on of the tomatoes was 



PACIFIC TOMATO GROWERS y. CROWN PRODUCE DISTRIBUTORS 1337 

Volume 44, Number 3 

Average approximately 5% green and breakers, 50% turn- 
ing and pink, 45% light red and red. Average 2% decay. 
From 2 to 26%, average 9% damage, including 3% serious 
damage by sunken discolored areas over shoulders. 

8. The formal complaint was filed on March 19, 1984, which was 
within nine months after the cause of action herein accrued. 

CONCLUSIONS 

Respondent accepted the tomatoes involved in this proceeding, 
and resold the 720 cartons of size 5x6 Heller brand tomatoes in 
Los Angeles. The remaining tomatoes were shipped by respondent 
to a customer in Hawaii. A federal inspection of the tomatoes 
shipped to Hawaii, made in Honolulu on November 22, 1983, re- 
vealed an average of 18% decay and an average of 16% damage by 
sunken discolored areas over the shoulders in the 72 cartons of size 
6x7 Victory brand tomatoes; an average of 33% decay and 5% 
damage by sunken discolored areas in the 72 cartons of size 5x6 
Victory brand tomatoes; and an average of 9% decay with an aver- 
age of 8% damage by sunken discolored areas over the shoulders in 
the 720 cartons of size 6x6 Heller brand tomatoes. It is respond- 
ent's contention that the complainant, at the time of the making of 
the original contract, had specific instructions to ship the tomatoes 
only if they would make good delivery to Honolulu, Hawaii. Re- 
spondent also contends that after arrival of the tomatoes in Los 
Angeles complainant was informed of the inspection results by the 
broker and "still maintained said tomatoes would make good deliv- 
ery on arrival in Honolulu." 

In rebuttal to these contentions complainant's W. H. Sheffield 
made the following reply: 

Affiant specifically denies that MR. HAILE requested that 
the tomatoes be shipped only if they could make good de- 
livery to Honolulu, Hawaii. . . Even if he had, affiant 
would never make such a representation, as there is no 
way affiant or his employer would sell tomatoes to make 
'good delivery' in Honolulu, Hawaii. MR. HAILE did indi- 
cate the load might go to Hawaii. 

In addition Mr. Sheffield stated that following the arrival of the to- 
matoes in Los Angeles: 

MR. HAILE did ask affiant if he thought this could be 
shipped to Honolulu and if they would make good delivery. 
Affiant stated he would not make any recommendations, 
and anything Crown did at that point was up to it; they 



1333 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Numbers 

could see the tomatoes and they could read the TT 
report of the 15t h. Affiant specially den e the 

ons m he answer, . . . that he "maintained" the - 
toes would make good delivery on the arrival in Honolut 
Th,s was an F.O.B. sale and the inspection report at Los 
Angeles showed the tomatoes met the contract 



rder WaS given to Pete Sheffield of Pacific 
Growers, ... for sh i pp i ng n/11/83) to ^' 

Wednesday, 11/15/83 for export by boat to Hawaii. . 

. Truck arrived LA on time, 11/15/83. John Florence of 

dr; z or t 4 t hat the . tomat es re ^owijr; 

decay and that an inspection had been called 

'JT 6C T.^ 8 read 4 Mr ' Sheffield b >" Phn 
and he said that tomatoes were good and that 



inf T, ty the br ker are amWpiou. at best. They 
' a " riginal C0ntract ^quiring good 



aft arvao ' g & reaffi ^ of such cont rac t 



s-fflKrafts 

S otLr d o " n 0rand r concerai "g Hawaii at all. None of 

^xxsz^-*~ 



by rn L P , e n tl0 t n '" ^ A " geles shows that the 
t acceld r r T de g d deliver y in L s A " 
prove bS ho? t ^t 68 fa L S Angeles - and ** fcned lo 
tomatoes Ac ordtriv ^ Com .P Iainant lative to any of the 
Ml PUrLse Trt 'f VrT nd6nt ' S Hable to complainant for the 
already been orf^t t0mat eS ' r $11 ' 060 - 10 - Respondent has 

The remfun KS?^* $i866 ' 46 f ' hiS am Un '' 
amount ot $6,193.65 remains due and owing from 



L-N-L PACKING, INC. u. GEORGE J. TURKE 1339 

Volume 44, Number 3 

respondent to complainant. Respondent's failure to pay complain- 
ant such amount is a violation of section 2 of the Act for which rep- 
aration should be awarded to complainant with interest. 

ORDER 

Within thirty days from the date of this order, respondent shall 
pay to complainant, as reparation, $6,193.65, with interest thereon 
at the rate of 13% per annum from December 1, 1983, until paid. 



L-N-L PACKING, INC. v. GEORGE J. TURKE d/b/a TROPIC KING 
GROVES, a/t/a SILVER PALM GROVES, PACA Docket No, 2-6618. 
Decided June 14, 1985. 

Failure to pay; no record of payment Decision. 

James W. McDonald, for complainant. 
Edward C. Palmer, Jr., for respondent. 

Dennis Becker, Presiding Officer. 
Decision by Donald A, Campbell, Judicial Officer, 

DECISION AND ORDEK 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.l A 
timely complaint was filed in which complainant seeks an award ot 
reparation against respondent in the amount of $6,632.50 in con- 
nection with three shipments of produce in interstate commerce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties. A copy of the formal com- 
plaint was served upon respondent. Respondent failed to hie an 
answer thereto, and was initially held in default. After requesting 
that the matter be reopened so that it could file an answer, it was 
determined that respondent should be allowed to do so, and re- 
spondent filed an answer denying liability to complainant. Since 
the amount claimed in the formal complaint does not exceed 
$15,000.00, the shortened method of procedure provided m section 
47.20 of the Rules of Practice (7 CFR ^\ 
ant to this procedure the verified pleadings of the 
sidered a part of the evidence in this case, as 
report of investigation. The parties were 
file additional evidence in the form of 
spondent filed an answering statement and 

^ . , . , XT--J.I t,7 filprl fl brief. 

statement in reply, r 



1340 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

FINDINGS OP FACT 

1. Complainant, L-N-L Packing, Inc., is a corporation with an 
address at P.O. Box 1501, Homestead, Florida 

2. Respondent, George J. Turke, is an individual doing business 
as Tropic King Groves, which is also trading as Silver ft 
Groves Its address is P.O. Box 560074, Miami, Florida. At the time 
the Act mnSaCtl0nS inV 1Ved herein respondent was Kcensed under 

3. On or about May 20, 1983, complainant sold to Wakefern Food 
Corporation, Elizabeth, New Jersey, 300 cartons of limes at $465 a 
carton for a total contract price of $1,395.00, delivered. Respondent 
was the broker in this transaction. The limes were shipped in 

y Wakefe Fd 



4. On or about May 27, 1983, complainant sold to Super Markets 
General Corporation, Woodbridge, New Jersey, 250 flats of man- 

ir^nlf a I f01 u a , t0tal contract P rice of $1,812.50, delivered, 
Respondent was the broker for this transaction. The goods were 
shipped in interstate commerce to Super Markets General Corpora- 
tion, and were received and accepted. 

5. On or about May 31, 1983, complainant sold to Wakefern Food 
u>rporation, Elizabeth, New Jersey, 250 cartons of limes at $6.GO a 

$7 10a carton for ^ f $ *' 660 ' 00 ' and 25 cartons of limes * 

frZ^Hnt 8 ' 4 ^' 00 ' delivered ' Respondent was the broker in this 

kefern S P ^ ^^ in interstate commerce to Wa- 
ketern Food Corporation, and were received and accepted. 

IQSA A , COI "Plaint was filed in this transaction on May 29, 

-*.vO~i, jfilT HTTrJl*Tnfli f*r\tviT\lr*i-**(- ..*^ n jy i i t n .. 

^"luiiimi t-umpiamc was filed on January 24 1984 which 
Tu'ed ntne m nthS f the time the cause of acti he ^ein QC- 

DISCUSSION 

IVPW> u j ^ this Case as to whether the three loads of 
tw fl ^ Pped in interst ate commerce. Both parties 
cnat they were, and that the receivers located in New Jersey 
^accepted ^the produce. The issue raised is whether 
paid for the 



n , 

n 7th e at re t SP n , dent reC6iVed W"..*' 
hand olZffl I ... ntract prices ' Respondent, on the 

' an record that " received 



ner f '- 

Food cS f tatoment - il had rece! ved from Wake- 

Wro with respect to the transaction which oc- 



L-N-L PACKING, INC. u GEORGE J. TURKE 1341 

Volume 44, Number 3 

curred on May 31, 1983. Respondent claims in addition that any 
money which might be due to complainant would be offset by a 
S.2B commission for each box sold in that transaction, or ^b.UU, 
and by other transactions in which it sold goods to P lalna f be ; 
tween May 18, 1983, and August 9, 1983, but for which it has ^not 
been paid. However, with the exception of the brokerage, these ae 
toffs cannot be recognized in this proceeding for two reason . First 
because the transactions are not related to the transacts ^plead 
ed in the complaint, they cannot be utilized as a setof or counto 
claim. Therefore, since the answer was not ffled untd Jul 17, IB M. 
which is more than nine months after the '** transaction o^ 
curred, the statute of limitations provided m section 6a (7 U.b^. 
499Ka of the PACA precludes our ^ ng ^^^-S 
ceeding. Second, the defense was not properly ra,sed since respond 
nt did not plead it until its Answering Statement, and when i 
did, it did not provide any evidence of the occurrence of the trans 
actions other than its claim that they occurred. nrn , ppdine 

With respect to the three transactions at issue in th, P^S 
as the proponent of the claim that respondent has failed to make 
payment to it complainant has the burden of proof t show all ^ 
the essential details of the transactions, and a failure * pay onto 
part of respondent. See New York ^de Assoc^UonJ^S^y 
Sandier, 32 Agric. Dec. 702 (1973). We find ^^ ^ 
failed to carry its burden of proof. Complamant d:d not submi ay 
documentation other than three invoices which showed that 
purchasers of the produce _were the rece.v.s^ted N^ 



1342 






PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



3 

tion of section 2 of the Act fo T ^V^ am Unt is 
to complainant with interest Cation should bo awaro 



hS wMS 6 1 the date of this Ord - '^-" 

thereon at heTate of l^' reparatlon > W' 875 ^. with int er < 
paid. f 13% per annum f m July 1, 1983, U n 



SHIPPER ' 

^r COMPANY ' PAC 

Complainant, ^m se 

d - *** Dallas, TX, for respondent . 

. Campbell, Judicial Officer. 
DECISION AND ORDER 



the 
timely comp aint w fii ,' < ?? ended C? U ' S ' C ' 499a 

ion tS^SS 5 J?S2 7 r plainant seeks a 

of a partial truckload nf ^' 43 ; 75 ln connection with the 8 nh 

A TODV of fh P P1Ua0h m interst ^e commerce. 

*^ * the DepnH 

complaint was served 1- / parties ' A CO W of the form "l 

thereto denying 1 abnitv.n reSp , ndent - Re8 Ponde nt filed an anBW * 
as damages in the foZ, com f? au ^t. Since the amount claimed 
shortened method of T^' d eS not exceed ^ m '^ the 
1 ^<rffttoffS^^. pIwided in section 47.20 of the 
cedure the parties w nff j applicable< Pursuan t to this pro- 
evidence. O^plalnaTfil^ ^ PP rtunit y to file additional 

an ^ peni ^ statement. Although of- 
o so, neither party filed a brief. 

FINDINGS OF PACT 



Chipper, Inc., is a corp, 
York, ss a -0- Box 41, Port Jefferson Station, Now 

2 



& V ^ ab le Co., is a corpora. 
Prepak Company, with an addrm 



JERRY SHULMAN PRODUCE u. AMERICAN PREPACK CO. 1343 

Volume 44, Number 3 

at 1120 South Central Expressway, Dallas, Texas. At the time of 
the transaction involved in this proceeding respondent was licensed 
under the Act. 

3. On October 10, 1983, complainant sold to respondent 805 boxes 
of spinach at $6.45 per box plus $2.05 per box for freight and $.25 
per box for ice for a total contract price of $7,043.75, f.o.b. On that 
date the spinach was cut and loaded in Cranbury, New Jersey for 
shipment to respondent. Each box of spinach was loaded first with 
a layer of spinach, then with ten pounds of ice, then with more 
spinach, and topped off with more ice. 

4. The trucker was Stonier Bakeries of Jacksonville, Florida. It 
provided a trailer of extra length, as a result of which the spinach 
did not have to be packed tightly in order to fit inside the trailer. 
The spinach was packed in the trailer by Zinsmeister Farms, which 
was very experienced in the packing of spinach for shipment. The 
boxes were packed in such a way that there was free air flow, and 
so that there was considerable room at the top. Zinsmeister Farms 
blew at least three inchs of ice across the top of the trailerload of 
spinach. 

5. The spinach had not been precooled. It was already in boxes 
when the trucker arrived, and began to be loaded about 9:00 p.m. 
on October 10, 1983. The driver was instructed to maintain the 
temperature of the trailer at 38 degrees fahrenheit. 

6. On October 11, 1983, the driver called complainant, or its rep- 
resentative Zinsmeister Farms, and advised it that there was very 
little ice left on the top of the boxes. It was advised to proceed to 
Zeropack Company, Winchester, Virginia, and add ice to the tops of 
the boxes. It added twelve blocks of ice, each weighing 300 pounds, 
by blowing the ice across the top of the boxes. 

7. The load of spinach arrived at destination on October 13, 1983, 
where half of it was unloaded by respondent and put in its storage 
units. Therefore, respondent received and accepted the spinach. 
Upon inspection of the spinach respondent determined that it was 
in poor condition. It secured a federal inspection at 8:05 a.m. on Oc- 
tober 13, 1983. 

8. The federal inspection showed in pertinent part that approxi- 
mately 400 cartons of the spinach were on the trailer and another 
400 cartons were in applicant's cooler. It further showed there was 
no ice in most cartons, but that some cartons had a small amount 
of ice. With regard to temperatures it showed as follows: _ 

"Loaded Lot'. Rear stack Top 45>F, Bottom ^ F= - vancu^other 
location 50 to 82'F. Unloaded Lot Rangers from 56 to 85 F in van 
ous locations in cartons and pallets." With respect to the condition 
of the spinach it was stated as follows: 



ASKABLE AGH,CULT URAL COMMODm ES ACT 

Volume 44, Number 3 



m e n ' 

yellow leaves. In nlst JT% aVerage 11% 
none, average 4% BacS M", " 2 t0 10% ' 
advanced stages ft Rot ' mostl y ; " early, some 



1". A formal cornp ato^m V 8a T g &6 - 31 "5 
complaint was filed" o 



DISCUSSION 



n of a partia , truckld of ? nS *"' ^ deterio ted con 
inant to resp 0ndent ; d , f fP. ln ^h which was sold by com- 

as U.S. No P I. Purl L n o 6r v CF R C ^,T 7 r f ' The * 1 *^ 
10 percent, by count, of any lot mSf^ U781W " not than 
of te g rade) including not m e t hL ' t0 meet the ""tutamanto 
when are affected by decav Pur t Per ent for 8 P in adi leaves 
erances f or UA Nft \ ^ ach ^~^ f CPR 51.1733 the to ! 
cent, or more , individual contain ', h ? a tolerance is " P<=r- 
than one and one-half times he t'l ^ ' Ot Sha " have not m e 
inspechon taken at destination o n^ SP f ffied '" There 

dl f ? WWch showed that most om P1M ^ inV lved in th P- 
with an averae ames had 20 % 



, T,,,, s7 UI ?" 

'- - fift -rsa 

The evidence shows tw 



f 
h , , from the field in New 

tW - ^ an 6 W 6 , temperatures in Z 
a'S ,' he mann ^ of packint I' ' th Ugh the P art iea dis- 

SaW that th cartons were packed 



JERRY SHULMAN PRODUCE v. AMERICAN PREPACK CO. 1345 

Volume 44, Number 3 

very closely together so that there was not sufficient air flow 
through the truck. It provided an affidavit on the part of the truck- 
driver which showed in pertinent part that many of the cartons of 
spinach did not have ice packed between the layers of spinach. 
Complainant, on the other hand, contended through its packer, 
Zinsrneister Farms, that the spinach was packed in accordance 
with the longstanding practices of that particular business. An affi- 
davit was provided by Mr. Jacob R. Zinsmiester, Jr., in which that 
individual stated that: "In packing spinach, our procedure is to: 

a.) Place 10V6 pounds of spinach in the bottom of the 
carton as it comes off the grading table. 

b.J Add approximately 10 pounds of crushed ice on top of 
the first 10 V4 pounds of spinach. 

c.) Add an additional lOVa pounds of spinach on top of the 
ice to give the guaranteed 20 pounds net weight. 

dj Close the carton. 

e.) We then blow crushed ice on the entire shipment after 
loading." 

Mr. Zinsmeister also stated that the driver's claim that the ice was 
added to some but not all of the cartons was inaccurate because ice 
is placed in the center of the carton at the time of packing rather 
than the time of loading. He further claimed that the entire Joad 
.vas packed loosely in the trailer. Finally, he claimed that the 
Iriver said he was too tired to assist in the loading, and did not do 
to. Therefore, the driver was not in a position to know whether the 
:artons had ice in them at that time. Because of the vying state- 
nents of the two parties it is difficult to conclude that the testimo- 
iy of one should be preferred over that of the other. As will be dis- 
ussed below, however, respondent accepted the spinach, and has 
he burden of proof to show that its statement is correct. In any 
vent, we do accept as accurate the statement that the tempera- 
ures in the area on October 10, 1983, ranged between 49F and 
2"F, This puts into serious question whether the trailer was kept 
t proper temperatures subsequent to being loaded in view of the 
igh temperatures of some of the spinach at destination, not to 
lention the fact that the ice which was placed on top of the car- 
ins melted prior to the elapse of 24 hours. 

It is clear from the invoice, and is not controverted by respond- 
it that the transaction was f.o.b. shipping point, Indeed, although 
spondent denies in its answer that the transaction was f.o.b. ship- 
point, it waived the issue for purposes of this proceeding as 



1346 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

not being relevant. This would make no difference since in a letter 
to the Department of Agriculture which is contained in the inve U 
gatwe report respondent admitted that the transaction was free on 

the%i s f PP 7 POmt '. U " der such Circumstances the purcha h 
the r,sk of damage in transit. Six L's Packing Company, Inc v 
Sloan Produce, Inc., 29 Agric. Dec. 615 (1970). We think the key 
factor to show that the spinach was damaged while in transit as 
opposed to being damaged prior to being loaded on the baiter o 
improperly packed. is the fact that the top ice had melted 



Octobn 8 V, T " Ct er 10 ' 1983 > and the ""> 
October 11, 1983, thereby requiring the trucker to stop in Viminia 

and add more crushed ice to the top of the load. Since compnS 
' " St *" "" 4 maintain the interior 



tra t 8Fch nor 

trailer at 38 F, such 1C e, even if it were only 3 or 4 inches deep 

should not have melted overnight. The most ready explanation* 
such melting is that the trailer was maintained at a ve?y high torn 
perature after it was loaded. fe 



n! Unl adi ^ f the tra " er ' even in P art - constitutes an act of 
acceptance on the part of respondent. Theron Hooker Company /</ 

nw'X :t ett " g - v ' Ben Gatz C " 30 A S' ^ iVim 
how thTi , 18 ' CCUr . res P ndent has the burden of proof to 

L amount of P H ama ^ ^ aSKemsnt > and l * * * 

the amount of damages which it suffered as a result of such 

Po 1 r Ryde C ff Potato Co. v. The Kaufman Vl 



D6C ' 1056 (1957) - Altho Sh we find on 

taaf ' rd that the Pr blem whlch eau ^ d tho 

h ret 1 f r Z s d t e f inati01 ! th s *rious condition defects was 
olutLn M t P rtatl0n Pr blems ' we need not re 'y tl^t n 
mustshow ta res P" sibilitv this case. At besi, respondent 

was a fault "R" PreP , nd t er , anC ^ f the 6vidence that >Plainant 

Teh c~ P 'u* HaS failed to carr y that bu '- de "' Under 
sucn circumstances w^ Vimro nn /,!; u..i. A . .. i ,, . . , 

it 



R. F. DONOVAN FARMS, INC. , CORGAN & SON, INC. 
Volume 44, Number 3 



1347 



R. F. DONOVAN FARMS, INC. v. CORSAN & SON, INC., PACA Docket 
No. 2-6800. Decided June 25, 1985. 

Thomas Qliveri, for complainant. 
Respondent, pro se. 

Decision by Donald A. Campbell, Judicial Officer. 

ORDER REQUIRING PAYMENT OF UNDISPUTED AMOUNT 



This is a reparation proceeding under 

al Commodities Act, 1930, as amended ..jj Comp i a in- 

timely formal complaint was filed or | Janu ^ ? aUeged to be the 
ant seeks to recover $45,634.37 which amount i alleg 
total purchase price for mixed vegetables sold to and ^ P^ ^ 
respondent from June through October 198 .Re *P admit _ 

answer to the formal complaint on April 8, 1J*, ^ t was due 
ting that $44,726.21 of the amount claim d by compta .^^ 

and owing to complainant on account of ^ 1(J 

herein. In a letter dated May 10, 1985, respo n t of Undis . 

days to show cause why an Orde J .^'nfount of $44,726.21, in 
puted Amount should not be issued in the amo ^ ^ ^ Hg 

view of its apparent admission oi J^ 1 "^ ^ regpQnd would 
answer. Respondent was told that the onnnf i pn t did not respond 
result in the issuance of such an order. Kespona 
to the May 10, 1985, letter. nrn vides in 

Section 7(a) of the Act (7 U.S.C. 499g(a)) provides 



If after the respondent has filed his ' a^ nt has adm it- 
plaint, it appears therein that _tte resp^ ^^ . n ^ 
ted liability for a portion of ^the a ^ . gsue an 

complaint as damages, the ^creta y ^ complainan t the 
order directing the /^P^tgthe respondent's liability 
undisputed amount . . - leavu^ e dete rmination. 

for the disputed amount for sub e u . ^d ^^ 

Accordingly, under the authonty of the nt 

spondent shall pay to complamant a a ^^ 

W4.728.21. Payment of this amou* *ai n ^ ^ rat of 13 

L m the date of this order wrth t e* ^ paid . A talur. to 
percent per annum from November , U^^ g vidatlon of se e- 
pay this amount within 30 days w 

Ln 2 of the Act. 7 U.S.C 499b. ^ a ount is W* 

Respondent's liability for P*^^ manner and under the 
for subsequent determination in the 



1348 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



the 



Rejection of shipment; breach of warranty. 

Complainant, pro se. 
Respondent, pro se. 

Decision by Donald A. Campbell, Judicial Officer. 
DECISION AND ORDER 



amount 

copv f thp n f f apples in interstate '- 

erved u Don T rf V8H * i *' tte ' P re P^ed by the Department 
served unl , Pm ' tleS - A Py of the formal complaint Wls 

Sv TL ""P'ff . wM* filed an answer thereto, denying H 
rto? a alSO f f d a counte -l-m in connection ^h'hc 
therl denyiTbiS; 116 C mplaint ' ^^^ Hied a reply 

thfshorteneTnTf lmed aS damag6S d es not exceed 
pS*o^^R7^?. Pnlvid9d in SeCtion 47 ' 20 of the 
ihe rI offnvlt ' S aPPliCaWe - Pursuant to 

dence as Ire th ; v l ?r 7 C nSidered to be a P art f the 

and answer - Th P"!*" 
n additi nal ^idence in the form 

" to f " e brieft ' R ^P"den.t submit- 



FINDINGS OP FACT 



of the transact i f akima ' Was hington. At the 

; complainant 



lr x g AB e f k r,T? C -' 1S a COrpOTati wh ^ "> 
transaction a ne ged ' in B t ersfleM ' 1 Califom i^ At the tim of the 
JndertheAct. complaint, respondent was licensed 



YAK1MA FRUIT & COLD STORAGE v. AG WEST GROWERS 1349 

Volume 44, Number 3 

3. On approximately April 15, 1983, complainant sold to respond- 
ent a carlot of Red Delicious apples consisting of 2,015 cartons as 
follows: 

Price 

No 
of Grade Brand Size . Total 

Car- ton 

tons 

App.eto.vn 72 * *^ 

200 Fancy Appletown 64 7 ,600.0 

200 Fancy Appletovn WO J.0< MOO.O" 

25 Extra Fancy Smart A Ppl e * ' ' '' 00 

100 Extra Fancy Larson ,r,nR4R7<;o 

885 Fancy Autumn Fresh ' ^ 

200 Fancy Autumn Fresh 80 7.50 I.JUU.UD 



The total contract price, including $22.50 for a 

$15,935.00, f.o.b. Shipment was to be made to ^^^ 

er, Affiliated Food Stores (hereinafter, "Affiliated ), Dallas lazes. 

The contract was negotiated by Chinook Marketing Co., Inc., 

Yakima, Washington, who acted as a broker. 

4. Complainant prepared a loading manifest showing that a 
2,015 cartons noted in Finding of Fact 3 were oaded n' "- 

5. On approximately April 23, 1983, the apple s *W^ 
rail from complainant's place of business in interstate rce to 
Affiliated, where they arrived on May 8, 1983 . Upa n a rrrval t hey 
were subjected to a federal inspection, which found as follows, 
relevant part; 

T, , L T * j APPLES in tray pack cartons printed 

Products Inspected-. A mn Fresh; U.S. Fancy, Larson 

Fruit Co, Selah, Wash." and stamped 
"80 size Red Delicious" or printed 
"Apple Town. U.S. Fancy and 
stamped "88 Size Red Delicious or 
23 Smart Apple, U.S. Extra 
Fancy" and stamped "88 size Red De- 
licious," Apple Town and Smart 
Apple lots "Yakima Fruit & Cold 
Storage Co., Yakima, Wa.", each 
S "W.A.C.A. 160." AppKcant 
states 1,415 cartons. 

r, w f T n il. Through lengthwise and crosswise load; 

Condition of Load. g ^ ^ 4 iQ g layers . 

Condition of Pack; Each lot: tight 



1350 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 



Temperature of Product: Doorway: Top 39F., Bottom 40T. 



Condition: 



Remarks: 



Smart Apple lot; Firm to firm ripe, 
mostly firm. No decay. Autumn Fresh 
lot: Firm ripe to ripe, mostly firm 
ripe. From 2 to 12%, average 7% 
damage by bruising scattered 
throughout pack and affecting riper 
stock. From 4 to 8%, average 7% In- 
ternal Breakdown. From 4 to 8%, av- 
erage 6% decay, Blue Mold Rot, 
mostly in advanced stages. Apple 
Town lot; Generally firm to firm ripe, 
few ripe. Average 2% damage by 
bruising. Average 2% Bitter Pit. Av- 
erage 2% scald. In Va of samples 1 to 
6%, remainder none, average 2% 
Blue Mold Rot in advanced stages. 

Inspection and certificate restricted lo 
product and lading between doors and 
one stack each side of doorway. 



6. After the inspection, Affiliated contacted respondent and indi- 
cated that it wished to reject the load. Respondent then notified 
the broker that it was rejecting the load, and the broker relayed 
this information to complainant. Complainant told the broker that 
it did not agree that the condition of the apples warranted their 
rejection. 

7. On approximately May 12, 1983, the carload of apples was con- 
signed by complainant to W.W. Rogers Produce (hereinafter, "W.W. 
Jtotrera \ n,,ll M) Texas, which received and accepted it. 

7 fi 1QQO lir \rr T _ 



YAKIMA FRUIT & COLD STORAGE u. AG WEST GROWERS 1351 

Volume 44, Number 3 

principal issue, whether respondent's rejection was with reasonable 
cause, we will deal with certain defenses raised by respondent. Ke- 
spondent claims the complaint is barred by laches because of com- 
plainant's delay in notifying respondent of its intent to file a com- 
plaint. This claim is completely without foundation, as there is no 
requirement that complainant notify respondent that it intends to 
file a reparation complaint. Complainant has fully complied with 
section 6(a) of the Act (7 U.S.C. 499a in bringing this action 
within nine months from when the cause of action accrued. Re- 
spondent asserts that its contract with complainant was rescinded 
because of complainant's alleged delay in objecting to respondent s 
rejection and complainant's stated intention to bring its complaint 
against Affiliated, rather than respondent. The record revea IB that 
oa May 9, 1983, respondent sent a letter to complainant ^stating 
that Affiliated had rejected the load, and on May 27, 1983, J*>m 
plainant prepared a letter to respondent stating that it refused to 
accept the rejection and would file a complaint against Affiliated. 
It is apparent that complainant made a timely objection to_ the re 
jection. Moreover, if complainant were under the }P" that 
Affiliated was the party against whom its complaint *ould be 
filed, such impression resulted from respondent s own May a. 1WM, 
letter stating that Affiliated, not respondent, had Rejected th to*. 
Respondent contests complainant's claim that the "/^g 
with 2,015 cartons. However, complainant has mtroduced a loading 
manifest which clearly supports its claim (Finding of J-act V . 

We now turn to the principal issue which must ^ deo ' ded 
herein, whether respondent's rejection was with r asona ,le 
Respondent argues that the May 3, 1983, inspection * 
Autumn Fresh lot to be abnormally deteriorated wh*h 
sufficient grounds for rejection. However the ^on 
apples need not be considered in the decision as to whether 
was reasonable cause for respondents reject^ this ca 
May 3, 1983, inspection report state > that ^f^^, and 
tons of apples. As the car originally contamea e of the 60 car- 
there is nothing in the record to explain he absen ^ rf 
tons, we can only conclude that ^J*?" con6t ituted accept- 
by the receiver, Affiliated. The act of ^"Wti Company, ho., 

M r 






y te recever, a. Wti Comp 

ance of the carload. Mario Saikhon v. RuwM J r t 

34 Agric. Dec. 1940 (1975). ^refore respondent a P 

the car occurred after the apples ^^^46.2^(4)). 

e f 



. . 

the car occurred after the apples .. 

ed a rejection without reasonable cause if we wou j d not 

Even if the condition of the | apples ^^^ was an f.o.b 
fmd it evidence of abnormal detenorauo ^ ^^ at 

sale, complainant gave an implied warranty 



1352 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



would assure delivery wlZ, fT !? Se Ce and Conditions, 
tract destination 7 CF^ 646m r rmal , deteri rati0n at the 
S, 1983, federal inspection shnw a V? ?f nt "^ that the M ^ 
mally deteriorated and th af T '" ^ ^ * ^ abn r 

noration by delaying ^ one dav bT" T"* 0ntributed < this dotc- 
the inspectL ^mald^,f T^ appl " Howow ' 
the Autumn Fresh lo^f InT^ " Iy the slze 80 a PP J <* ^m 
cartons, were sublet t ot hl > Car A Contained a total of 209 

states that it coveref on y t5o P fT h r 2 n oi1 S "? inSPeCti n Wpwt 
entire car, we cannot HP 1 7 .u ' 5 cartons comprising the 

Autumn Fresh apple, ^IrH '" ^ a " 2 Cartons of si ^ 80 

inspection. Even if al] Ion' "f " ' he Car at the time "f 

that the inspection' w as re t ctodloTh" "T^L*" rSP rt " tes 

and in one stack on each U P n f !>, ! art nS between the dows 

stantially detract from the weilt f \ ^''^ TheS6 fectore sub ' 

respect to the condition of fh?9nn ^ glVe " the ^P^ion with 

apples. Further as ^ n! h ? * "" 8 AutUmn Fresh 

missing cartons were in anvtwLr'f for J assumin S ^at the 600 

of deterioration in the entire "015"' f d , co " diti . *e amount 

abnormal. ConseauentlvT ^ f t0n load was certainly not 

reasonable causTevef ^S a e r tS ^^ W U ' d be wi " lout 
rfthe apples disclosed J he M^ gi to the conditi " 
Having wrnnrf,,n,, , Ma y 6 - 19g 3. inspection. 

liable tolmSant K^ Sf ^ f aPPleS ' resp ndent is 
tween the contrac pn t ^S ^ nt, f, d " y the differe " Ce be ' 
the resale is macfe in goodfe t h a/^ f 6 ^^ P ' lo " 
He manner. Sid Limie & n n , a con "nerciall y reasonn- 
<1975); U.C.C. 2-706 Corn nl. V ' , ' Bdsm > M A S ric - ^- W 
Rogers, which rem tted $2 OSfiTn" p C nSiSned the ap P les to W - W - 
Rogers did not dSpose of thp ' f espondent P^ that W.W. 
Pare a proper accounting W V'C '"^^""'^ manner ' llor P re ' 
mg showing when each lot of i " Ot submit an Account- 

but did prepare a statement H^T" T S S ld and for what P". 
MM cartons were sold for lh y ' 1983 ' Whi h ahows that 

S3.85 per carton (Finding ^of Fac/W 6 " 417 3n average P rice of 
were made during May and Tnn IQQO aSSUme that these sales 
W.W. Rogers was atompOn, to H- ^ " iS C nsidered that 

apples towards th T enTof f. P S6 f a very Iar S e ^an^ty of 
the time it took to Si ttaT ";" 18 reSUlt8 f ite resales and 
sonable. Respondent argues Th,? a f Pear comme rcially unrea- 
damages by delaying from one to fi7 mant failed to miti ? ate 
tion before moving f he appC 1^ aft respondent's rejec- 
PP^es to W.W. Rogers. However, any minor 



HOMESTEAD TOMATO PACKING v. LEIBMAN'S WHOLESALE 1353 
Volume 44, Number 3 

delay in providing W.W. Rogers with the apples would not substan- 
tially affect complainant's damages under the conditions during 
which the resales occurred. Respondent points out that the state- 
ment of W.W. Rogers covers only 1,464 cartons sold, out of the 
entire 2,015 carton load. This does not detract from the credibility 
of such statement, however, as we have noted previously that ap- 
proximately 600 cartons were apparently removed from the car by 
Affiliated prior to the May 3, 1983, inspection and, therefore, were 
probably not even in the car when it was turned over to W.W. 
Rogers. Complainant's damages resulting from respondent's wrong- 
ful rejection are thus $15,935.00 less $2,036.40 or $13,898.60. Re- 
spondent's failure to pay complainant this sum is a violation of sec- 
tion 2 of the Act, for which reparation should be awarded, with in- 
terest. 

Respondent has filed a counterclaim which is based on the as- 
sumption that its rejection was with reasonable cause. As we have 
concluded that respondent's rejection was without reasonable 
cause, respondent's counterclaim must be dismissed. 

ORDER 

Within 30 days from the date of this order, respondent shall pay 
to complainant, as reparation, $13,898.60, with interest thereon at 
the rate of 13% per annum from June 1, 1983, until paid, 

Respondent's counterclaim is hereby dismissed. 



HOMESTEAD TOMATO PACKING Co., INC. v. LEIBMAN'S WHOLESALE 
TOMATOES, PACA Docket No. 2-6658. Decided June 28, 1985. 

Breach of warranty; counter claim Decision. 

Complainant, pro se. 
Respondent, pm se. 

Decision by Donald A, Campbell Judicial Officer, 

DECISION AND ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.). A 
timely complaint was filed in which complainant seeks a repara- 
tion award against respondent in the amount of $11,118.50 in con- 
nection with a truckload of tomatoes sold and shipped to respond- 
ent in interstate commerce. 

A copy of the report of investigation prepared by the Department 
was served upon each of the parties. A copy of the formal com- 



1354 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

plaint was served upon respondent, which filed an answer thereto, 
denying liability. Respondent also filed a set-off and counterclaim 
in the amount of $11,118.50 in connection with a transaction that 
occurred subsequent to that alleged in the complaint. 

Since the amount claimed as damages does not exceed $16,000.00, 
the shortened procedure provided in section 47.20 of the Rules of 
Practice (7 CFR 47.20) is applicable. Pursuant to such procedure, 
the report of investigation is considered to be part of the evidence, 
as are the verified complaint and answer. The parties were given 
an opportunity to submit additional evidence in the form of veri- 
fied statements and to file briefs, but elected not to do so. 

FINDINGS OF FACT 

1. Complainant, Homestead Tomato Packing Co., Inc., is a cor]M- 
ration whose address is P.O. Box 3064, Florida City, Florida. At the 
time of the transaction involved herein in the counterclaim, com- 
plainant was not licensed under the Act. 

2. Respondent, Leibman's Wholesale Tomatoes, is a partnership 
whose address is Denargo Center, Unit 14, 2929 Arkins Court, 
Denver, Colorado. At the time of the transaction involved herein in 
the complaint, respondent was licensed under the Act. 

3. On January 19, 1984, respondent purchased from compJamnnt, 
through a broker, Alpine Sales, Denver, Colorado, a truck tond of 
green tomatoes consisting of 360 cartons of 5x6 at $15.00 per 
carton, 792 cartons of 6x6 at $14.00 per carton, and 288 cartons of 
6x7 at $12.00 per carton, plus $.50 per carton for gas, $.05 por 
carton for freight to the gas house, $.15 per carton for palletizing, 
and $22.50 for a temperature recorder, for a total of $21,190,50, 
f.o.b. 

4. On January 19, 1984, the broker issued and sent to both par* 
ties a confirmation of sale stating the contract terms set forth in 
Finding of Fact 3, except that it did not include the $,05 per carton 
charge for freight to the gas house and did state that 85 percent of 
the tomatoes were to be U.S. No, 1 or better. The confirmation con- 
tained no reference to protection for respondent in the event of 
market decline. Both parties received the confirmation without ob- 
jection. 

5. On January 20, 1984, complainant issued and sent to respond- 
ent an invoice containing the information set forth in Finding of 
Fact 3. The invoice contained no reference to protection given for 
respondent in the event of market decline. Respondent received the 
invoice without objection. 

6. The truckload of tomatoes was shipped in interstate commerce 
to respondent, which received and accepted it. When the tomatoes 



HOMESTEAD TOMATO PACKING , LEIBMAN'S WHOLESALE 1356 
Volume 44, Number 3 



arrived, respondent told the broker it needed 

cause of market decline. On January 23, 1984, me D 

request to complainant, which rejected it. c P }a 

that it would try to help respondent on the next load 

agreed to deduct from its invoice the $.05 per carton charge 

freight to the gas house. i + til 000 00, but has 

7. To date, respondent has paid complainant * n '"^ uu ' to 
failed to pay the remaining $10,118.50 which complmnant claim. 

be due and owing. . whic h was 

8. A formal complaint was filed on May 29, 1984 ^^ 
within nine months from when the cause of action nere 
Respondent filed a set-off and counterclaim on November U , 
concerning a transaction which occurred aubjequent to the one 
contained in the complaint. It is unclear whether the ^^ansact'on 
alleged in the counterclaim occurred within nine months prior 
the date the counterclaim was filed. 

CONCLUSIONS 

Respondent does not deny P ureh ^ ng ' r ^^IdiMted^nteact 
truckload of tomatoes from complainant tor ai j for 

price of $21,118.50, f.o.b., and having paid a total ot ^ 
such tomatoes. Respondent claims that complaman agree F 

tect the purchase price in the event of ^f^^inant's fail 

ction due 



tect the purchase price in wie evoi^ *--- complainant's fail- 
further to a $2.00 carton price reduction ue clainl( resp0 ndent con- 
ure to ship on time. In its set-off and cou nte r a ^ QUnt claimed in 
tends that it was damaged approximately in dent . B or der 

the complaint because complainant canceu ^ ^ ^ bad at 

for another load of tomatoes sometime alter v damage s re- 

issue in the complaint. Respondent contends tna ^ ^ ^^ pur _ 
suited from the high price it was obliged TO ^ ^ f ^ logg flf cus . 
chase to replace the cancelled load, ana D defenses are con- 

tomers caused by the cancellation. All of these 
tested by the complainant, complaint. As respond- 

We will first discuss the allegations of the comp^ ^^ foj . the 
ent admittedly accepted the to .^^' due to any breach of war- 
agreed upon contract price.bss damages a ^ ^^ s t 
ranty by complainant, which r espona ^^ 4j Agric Dec _ 227 9 
C/ara Produce, Inc. v. Caruso *n* : ^ fajled to comp ly with 
(1982). Respondent contends that cm H t Q{ market decline. 
its agreement to protect res P r n ?, e ^ r p Or t e d agreement is an uns- 
However, the only evidence ot tms F * {s load was se t up, I was 
worn statement by the broker, w pro tection on market de- 
under the impression that we n a v affirmation by the 
cline through loading." This is not 



1351J PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

broker as to the existence of the alleged price protection agree- 
ment. There is other evidence that there was no such agreement, 
as price protection terms were not set forth in the broker's confir- 
mation of sale (Finding of Fact 4), nor in complainant's invoice 
(Finding of Fact 5). Respondent received both these documents 
without objection, which is evidence of the truth of the contract 
terms contained therein. Casey Woodwyk, Inc. v. Albanese Farms, 
Agric. Dec. 311 (1972). Respondent has the burden of proving that ft 
price protection term was part of its contract with complainant, 
and we conclude that respondent has failed to sustain this burden. 
Walker & Hagan Packing House v. Amato Bros. Tomato Distribut- 
ing, Inc., 27 Agric. Dec. 1543 (1968). Respondent also has tlio 
burden of proving its allegation that the contract was changed to 
reflect a $2.00 per carton price reduction. American Banana Co., 
Inc. v. Marvin Gray, 41 Agric. Dec. 539 (1982). There is no evidence 
whatsoever to support this allegation, and it also must be denied. 
Respondent has paid $11,000.00 of the adjusted contract price of 
$21,118.50. Respondent's failure to pay the remaining $10,118.50 is 
a violation of section 2 of the Act, for which reparation should be 
awarded with interest. 

Turning to the set-off and counterclaim, respondent does not 
specify when it ordered the truckload of tomatoes which complain- 
ant allegedly cancelled, other than that it took place after the Jan- 
uary 19, 1984, sale with which the complaint is concerned. Thoro is 
nothing in the record, such as a confirmation of sale, to indicate 
the date of the allegedly cancelled transaction. Therefore, we 
cannot conclude that it took place within nine months from the 
date the counterclaim was filed, November 13, 1984, and wns thus 
within the jurisdiction of the Act. 7 U.S.C. 499f(a). Assuming, or- 
guendo, that there were no problems with jurisdiction, and com- 
plainant unjustifiably cancelled a contract to ship tomatoes to re- 
spondent, we would still dismiss the counterclaim, as respondent 
has not introduced any evidence to support its claim of damages, 
such as an invoice representing its cover purchase in replacement 
of the order allegedly cancelled by complainant. Therefore, there is 
no merit to the counterclaim and it must be dismissed. 

ORDER 

JVithin thirty days from the date of this order, respondent shall 
pay to complainant, as reparation, $10,118.50, with interest thereon 

L j , % per annum ' from March 1. 1984, until paid, 
counterclaim is hereby dismissed, 



THE BRINGS CO. . HHDLICKA BROS. PRODUCE CO. 
Volume 44, Number 3 



1357 



THE BRINGS Co. v. HRDLICKA DAIRY 
BROS. PRODUCE Co., PACA Docket 
1985. 

Complainant, pro se, 
Respondent, pro se. 

Decision by Donald A. Campbell, Judicial Officer, 

DECISION AND ORDER 



This is a reparation proceeding undei 
al Commodities Act, 1930, as amended .. ~"" r eeks 
timely complaint was filed in which complamant ^see^ ^ ^ 
tion award against respondent in the amoun ^ onlonB to re . 
nection with the sale and shipment ol two ioa 
spoiident in interstate commerce. ^ Q epar tment 

A copy of the report of investigation pre parea y ^^ ^^ 
was served upon each of the parties. A copy ^ ^^ thereto , 
plaint was served upon Despondent whicn ng Uabilit 

admitting liability in the amount <* ^^'"wfobn and set-off 
for the remainder. Respondent also tiled a u . n fche com . 

for $332.25 in connection with the transacts n . ut an Order 

plaint. As a result of respondents f mission " fl ^ January 

Requiring Payment of Undisputed A ^ ou ^ ^ to comp lainant. 
10, 1985, ordering respondent to pay * 1 t> - . excee a $15,000.00, 
Since the amount claimed as damages ttoe ^ rf the Rules of 
the shortened procedure provided in s ^ ' guch procedure, 
Practice (7 CFR 47.20) is applicable. Pursua ^ ^ evidence , 
the report of investigation is considered to H ^ were ^en 
as are the verified complaint and answe -^ fom of verl . 

an opportunity to submit additiona Yd not do to so. 
Tied statements and to file briefs, but elected 

FINDINGS OF FACT 

rtnership whose address is 

i n/vmWicnrinnt The Briggs Co., is a p , times of the 
i. uompiaincaiii', j."^> ^ oa TiTjrtnptjnta. At U1B ,. i 

2875 Centerville Road, St. Paul ^ n ^ mplaina nt was licensed 

transactions alleged in the counterclaim, 

under the Act. . d Jnc ., a /t/a Hrdhcka tiros. 

2 Respondent, Hrdlicka Dairy Cattle, inc^ ^ ^^ ^ g QX 142 , 

-n j n la rorooration whose a transactions in- 



. espon, 

Produce Co., is a corporator '* of the transact^ m 
Chippewa Falls, Wisconsin. At the under the Act 

vcJed in * re tve-ber 10, 1988. compl-a* M 

i ib . wo . x 



vced in *V83 re and ve-ber 10, 1988. comp 

3. On October 20, 198d, ana i d Uib . wo . x 

to respondent, respectively, 150 bags o ^ ^ bags of 50 pound 
Onions at $6.25 per bag delive 



1358 



PERISHABLE AGRICULTURAL COMMODITIES ACT 
Volume 44, Number 3 



US No 1 Jumbo Yellow Onions at $7.00 per bag delivered for a 
total contract price of $1,987.50. 

nrtS tW ' adS f ni ns were shipped to respondent, and were 
cernfnf th7 n arnV M ReS P" dent v ^e any complaint 
cernmg the onions. No inspections were taken of the onions after 
they arrived at respondent's place of business. 

5 A formal complaint was filed on July 30, 1984, which was 
withm nine months from when the causes of action he ein cm! 
A countered and set-off in the amount of $332.25 concen g h 

ransachons mvolved in the complaint was filed along w "h re 
eponde.it s answer of October 10, 1984. In its answer, respondent 
appeared to be admitting liability for $1,655.25 of the amou 
leged m the complaint. Respondent was sent a notice to show Ise 
wh, an order should not immediately be issued against it requlZ 

he payment of $1,655.25. Respondent did not reply to such orde r to 
show cause and on January 10, 1985, an Order Requiring P ay me ,t 
of Undisputed Amount of $1,655.25 was issued against respond 



CONCLUSIONS 

In 



0f T respond f ts ^mission of liability for $1,655.25, result- 

A rf,! y 10 ' 1985 ' rder Re " uirin g P**-* of Undis- 
Amount, the only question which must be resolved here is 
whether respondent ,s liable for the remaining $332.25 alleged in 

f onio'nT h am . R "r dent ' 8 defense *> Ability ta that both load 
ot onions had condition problems when they arrived at its place of 
business. Respondent also claims that when it complained of tho 
condition of the October 20, 1983, load, complainant's agent ag 
to give respondent credit for its losses in the amount of $156.25 



s a tw loads of onio " e ' !t 

hi Jb nf C T 4 T Ce f SUCh loads ' less dama ^ s * ' 
I of warranty. Respondent bears the burden of proving 

S r 3868 by a P re P de nce of the evidence Far", 
n T M ;u V ' Alberts ' s I'"- 42 Agric. Dec, 429 (1983). 
ented nn ^" mS ' hat , the ni nS Were deteriorated but has p,,. 

such claL Th nCe ; SUCh 3S the results f an ins P eotion ' to * 
prove th^il 7' W \ Condude that respondent has failed (o 
prove the ex.stence of any breach of warranty by complainant, 

aJeed tX ^P "^ 4 ' 8 alle g atio " *** complainant's agent 
spondent fnv t , ' '" ^ am Unt of $156 ' 25 to compensate ro- 

^ Ct ber 2 ' 1983 ' load of - 
of Paving this change in the original con- 

of the 



i 1 Agric ' Dec ' 539 < 1982 '' Complainant has 
such credit, and there is no other evidence in the 



THE GARIN COMPANY v. ED GIVEN, INC. 1359 

Volume 44, Number 3 

record supporting respondent's allegation. Therefore, respondent 

has not sustained its burden of proving the alleged agreement to 

give credit. 

We have concluded that respondent has failed to prove either 

that complainant committed a breach of warranty, or agreed to 
give credit to respondent. Therefore, respondent is liable for the 
difference between the contact price of $1,987.50 and the $1,655.25 
already awarded in the January 10, 1985, order, or $332.25. Re- 
spondent's failure to pay $332.25 to complainant is a violation of 
section 2 of the Act, for which reparation should be awarded, with 
interest. As respondent's counterclaim and set-off is based on an al- 
leged breach of warranty by complainant, our conclusion that there 
was no breach requires that the counterclaim and set-off be dis- 
missed. 

ORDER 

Within thirty (30) days from the date of this order, respondent 
shall pay to complainant, as reparation, $332.25, with interest 
thereon at the rate of 13% per annum from December 1, 1983, 
until paid. 

Respondent's counterclaim and set-off is hereby dismissed. 



THE GARIN COMPANY v. ED GIVEN, INC., PACA Docket No. 2-6621. 
Decided June 14, 1985. 



Breach of warranty Dismissal. 

Thomas R. Oliueri, for complainant. 
Respondent, pro se. 



M. Silverstein, Presiding Officer. 
Decision by Donald A. Campbell, Judicial Officer, 

DISMISSAL 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et se g .) A 
timely complaint was filed in which complainant seeks reparation 
agmnst respondent in the amount of $4,920.90 m connection with 
oSe transaction, in interstate commerce, involving cauliflower, a 
perishable agricultural commodity. 



1360 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

thereto admitting that it was liable to the complainant in the 
amount of $1,800.90 with respect to the subject shipment, but deny 
ing any further liability to complainant. On September 20, 1984 an 
Order Requiring Payment of Undisputed Amount was issued' re- 
quiring that the respondent pay the complainant the $1,800 SO 
which the former admitted owing the latter. 

Since the amount of damages claimed did not exceed $15 000 00 
the shortened procedure provided in section 47.20 of the Rules of 
Practice (7 CFR 47.20) was followed. Pursuant to this procedure 
the verified pleadings of the parties are considered a part of the 
evidence in the case, as is the department's report of investigation 
In addition, the parties were given the opportunity to submit fur- 
ther evidence by way of verified statements. Complainant fited an 
opening statement, and respondent filed an answering statement 
Complainant also filed a brief. 



FINDINGS OF FACT 



1. Complainant, The Garin Company, is a corporation whose 
mailing address is P.O. Drawer 81731, Salinas, California 93912. 

2. Respondent, Ed Given, Inc., is a corporation whose mailing ad- 
dress is P.O. Box 1602, Salinas, California 93902. At all material 
times, respondent was licensed under the Act. 

3. On May 5, 1983, in the course of interstate commerce, com- 
plainant by oral contract sold to respondent 624 cartons of cauli- 
flower at an agreed f.o.b. price of $7.00 per carton plus 85 cents per 
carton cooling and $22.50 for a Ryan temperature recorder, for a 
total agreed f.o.b. price of $4,920.90. On that same date, the com- 
plainant shipped the cauliflower to respondent's customer in 
Tewksbury, Massachusetts. Pursuant to instructions from the re- 
spondent, the trucker made five other pickups in Salinas and 
Oxnard, California, including Romaine and other lettuce varieties, 
and departed from the State on May 6, 1984. The truck arrived in 
Massachusetts on May 11, 1984. 

4. Upon arrival of the truck, the respondent's customer, believing 
that some of the commodities on board the truck were damaged, 
requested a federal inspection. However, it was not able to have 
the produce inspected until May 12, 1983. The inspection certificate 
issued thereafter indicates that the inspection took place in the ap- 
plicant's warehouse, and that the temperature range of the cauli- 
flower was 40 to 41F. The temperature range of the other com- 
modities which were inspected was from 35 to 40F. The inspection 
certificate also indicates that the cauliflower met the quality re- 
quirements of US No, 1 but failed to grade US No. 1 on account of 
condition. The condition of the cauliflower was reported as follows; 



THE GARIN COMPANY y. ED GIVEN, INC. 1361 

Volume 44, Number 3 

"Curds mostly white, some creamy white and compact. Jacket 
Leaves: Generally fresh. Average 4% decay [sic] curds: 1 to 7 heads 
in most cartons, none in some, average 21% damage including /% 
ferious damage by black discoloration affecting curds 1 to 3 heads 
in y a of cartons, none in remainder average 1% Bacterial Soft Kot, 
various stages." Additionally, the Romaine showed 5% freeze 
damage which occurred at a location other than where it was locat- 
ed for the inspection. Other than the cauliflower, none of the other 
varieties showed any decay or any Bacterial Soft rot, 

5. The recording from the Ryan temperature recorder indicates 
that the temperature on board the truck ranged from 25 to du *. 
However, after the trip, the instrument was calibrated by the > Kyan 
Instruments, Inc., P.O. Box 599, Kirkland, Washington 930drf, tiy 
letter dated June 8, 1983, it reported that: 

Ryan #215556 returned to our Kirkland plant on May 
24, 1983. Upon testing, it was determined that the temper- 
ature sensor was damaged, preventing an accurate recall- 
bration. The chart drive mechanism was intact and accu- 
rate as to time. 

At the time of testing, the temperature sensor was read- 
ing approximately 6 low throughout the temperature 
range. However in view of the damage to the temperature 
sensor, this variance may not accurately represent vari- 
ance indicated on the trip chart. If you f ir ^ rther 
comment, please forward a copy of the chart #diD. 

6. Subsequent to receiving a copy of the chart, Ryan Instruments, 
Inc., reported the following: 

I have received a copy of chart 83075 I .would IKk .to 
direct your attention to the hour arc of tt d art. Ihe 
heavy dark markings at this point ind.ca e *e instrumen 
sustained a severe impact at or during n 
results of the recorder on its return to our P'^ 
24th indicated that the temperature s *f * h 8 th e 
preventing an accurate recalibrate, It appear that h 
Lpaot indicated on the chart is respon * * J 
damage noted in our testing and causes us to susp 
accuracy of the recording on .the , char a $500 per 

7. The respondent and its customer freely n B 

jarton reduction in price on the oau ^![' Me Report , for May 12, 

8. The Boston Wholesale ^ ageing $11-12.00. 
1 983 *" 4 ~ u " "- 1 *' 1 r-nnee i ww 



1362 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

9. Respondent has already paid complainant $1,800.90, plus inter- 
est. r 

10. An informal complaint was filed on October 25, 1983 which 
was within nine months after the cause of action herein accrued. 



CONCLUSIONS 



It is obvious from the report of the federal inspection that the 
cauliflower arrived in Massachuetts at the respondent's customer's 
location m damaged condition. The parties disagree on which is 
liable for the damage. The respondent argues that the complainant 
is liable for the damage because it breached its warranty of suita- 
ble shipping condition; the complainant, on the other hand argues 
that there were abnormal shipping conditions, and that, therefore, 
the warranty of suitable shipping condition is not at issue here. 
Complainant's position is founded on its allegation that the time of 
shipment was abnormally long, and that the damage to the cauli- 
flower was due to freezing on the truck. Complainant's position 
with regard to the cauliflower having been frozen on the truck is 
inconsistent with the condition of the cauliflower reported by the 
federal inspector. The damage which was reported, and is quoted 
above, tc., black discoloration, decay, and Bacterial Soft Rot, does 
not reflect that the cauliflower froze. In view of this we cannot 
agree with the complainant's position that the damage to the cauli- 
flower resulted from freezing. Nor do we think, since none of the 
other produce on board the truck was similarly damaged, that the 
extra day or so in transit contributed to the condition of the cauli- 
flower upon arrival. In view of the above, we are satisfied that the 
respondent has satisfied its burden of proving that the complainant 
breached its warranty of suitable shipping condition. 

Inasmuch as the complainant breached its warranty of suitable 
shipping condition, and the respondent accepted the cauliflower, 
the respondent is entitled to damages. The measure of damages in 
such circumstance is the difference at the time and place of deliv- 
ery between the value of the goods delivered and the value they 
would have had if they had been as warranted. UCC Section 2-714; 
N^n "7; Grem Gro ^ Markets, 29 Agric. Dec, 165 (1970), 

bv ST^ Tu d 0mpUte the value of the S od8 if as warranted 
not femSt? 6 T tr , a0t pdce plus frei ght- However > we have 

we SSi^ resp . onde " t ' s Cost of frei e ht in ^e record. Therefore, 
PnCe f the cauliflower as shown in the Market 
as the value the lettuce wou 'd have had 

t<rf - We accept the value of the *"* 

J Per Carton > whi 'h is the price freely negoti- 
resident and its customer. Respondent's damages 



GEORGIA VEGETABLE CO. v. EMERSON ELLIOTT PRODUCE 1363 
Volume 44, Number 3 

are therefore $3,120.00. The f.o.b. contract price is $4,920.90 which, 
less the $3,120.00 of respondent's damages, leaves a balance due 
complainant from respondent of $1,800.90. Respondent admitted 
owing complainant this amount, and has already paid it to com- 
plainant. Therefore, the complaint should be dismissed. 

ORDER 

The complaint is dismissed. 



GEORGIA VEGETABLE Co., INC. v. EMKRSON H. ELLIOTT d/b/a EMER- 
SON ELLIOTT PRODUCE, PACA Docket No. 2-6784. Decided June 
14, 1985. 

Complainant, pro se. 
Respondent, pro se. 

Decision by Donald A. Campbell, Judicial Officer. 

REPARATION ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.l A 
timely complaint was filed in which complainant seeks a repara- 
tion award against respondent in the amount of $10,811.00 m con- 
nection with a shipment of produce in interstate commerce. A copy 
of the formal complaint was served upon respondent, which tiled 
an answer thereto, admitting the material allegations of the com- 
plaint, including the indebtedness claimed by complainant. Accord- 
ingly, the issuance of an order without further procedure ^appro- 
priate, pursuant to section 47.8(d) of the Rules of Practice (7 UfK 

Complainant, Georgia Vegetable Co. Inc. is a corporation whose 
address is P.O. Box 2037, Tifton, Georgia 31793. R 
son H. Elliott d/b/a Emerson Elliott Produce, is 
whose address is P.O. Box 745, Casselberry, ^ d 
time of the transaction involved herein, respondent was 

factfaUeged in the formal complaint are hereby adopted as 
s of fact'of this order. On the basis of these fact* .we con- 

elude hat the actions of respondent are in 

the Act (7 U.S.C. 499b) and have resulted m 

t of 110,811.00. f 

order, respondent shall 



1364 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

$10,811.00, with interest thereon at the rate of 13 percent per 
annum from August 1, 1984, until paid. 



In re: Miss MUFFET FOODS, INC. a/t/a UNITED PACIFIC PACKERS, v 
V.I.P. FOOD DISTRIBUTORS, INC., PACA Docket 2-6792. Decided 
June 23, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 

REPARATION ORDER 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.l A 
timely complaint was filed in which complainant seeks a repara- 
tion award against respondent in the amount of $5,965,86 in con- 
nection with three shipments of frozen fruits and vegetables in 
interstate commerce. A copy of the formal complaint was served 
upon respondent, which filed an answer thereto, admitting the ma- 
terial allegations of the complaint, including the indebtedness 
claimed by complainant. Accordingly, the issuance of an order 
without further procedure is appropriate, pursuant to section 
47.8(d) of the Rules of Practice (7 CFR 47.8(d)). 

Complainant, Miss Muffet Foods, Inc., is a corporation whose ad- 
dress is 500 Wall Street, Suite 410, Seattle, Washington 98121. Re- 
spondent, V.I.P. Food Distributors, Inc., is a corporation whose ad- 
dreas is 1772 West 2300 South, Salt Lake City, Utah 84119. At the 
time of the transactions involved herein, respondent was not li- 
censed under the Act, but was operating subject to license. 

The facts alleged in the formal complaint are hereby adopted as 
findings of fact of this order. On the basis of these facts, we con- 
clude that the actions of respondent are in violation of section 2 of 

C 



,o Cl 4 " bJ and have resulted in damages to complain- 
ant of $5,965,85. Accordingly, within 30 days from the date of this 

^ OK reSP01 l dent Sha11 pay to complainant, as reparation, 
*5,%5.85, with mterest thereon at the rate of 13 percent per 
annum from May 1, 1984, until paid. 



ROBERT L. MEYER v. OTAY PACKING CO. 136C 

Volume 44, Number 3 

ROBERT L. MEYER d/b/a MEYER TOMATOES, v. OTAY PACKING Co, 
PACA Docket No. 2-6833. Decided June 25, 1985. 

DecisUm by Donald A. Campbell, Judicial Officer. 

ORDER REQUIRING PAYMENT OF UNDISPUTED AMOUNT 
This is a reparation proceeding under the Perishable Agricultu* 
al Commodities Act, 1930, as amended (7 U.S.C. 4Wa rf **X ^ 
timely informal complaint was filed on November 13, 1984, ana 
formal complaint was filed on March 1, 1985. Complainant seeks tc 
recover $99,947.50, which amount is alleged to be the total pui 
chase price for tomatoes sold to and accepted by respondent 11 
August and September, 1984. Respondent ^ /* JJ^Jl * 
formal complaint on May 8, 1985, admitting that $89,079.50 of th, 
amount claimed by complainant was due and owing to complaman 
on account of the transactions involved herein. 

Section 7(a) of the Act (7 U.S.C 499g(a)) provides in part: 
If after the respondent has filed his answer to the com- 
plaint, it appears therein that the respondent has admit- 
ted liability for a portion of the amount claimed in me 
complaint as damages, the Secretary . - . may sue an 
order directing the respondent to pay the w m plant the 
undisputed amount . . . leaving the respondent s liability 
for the disputed amount for subsequent determination. 
Accordingly, under the authority of the above *^ **j^ 
spondent shall pay to complainant, as an ^^"J^S 
(89,079.60. Payment of this amount shall be ade wthin 80 da y 
from the date of this order with interest ^hereon at -the ra e o 
percent per annum from November 1, 1984 until P^j^^. 
pay this amount within 30 days will constitute a violation 
tion 2 ofthe Act. 7 U.S.C. 499b. nmn unt is lef 

Respondent's liability for payment ofthe ^f a ^ 
for subsequent determination in the .same man dispute , 

same procedure as if no order for the payment of the un 
amount had been issued. 



13GG PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

CHAPMAN FRUIT Co., INC., v. T^STATE SALES AGENCY PACA 
Docket No. 2-6641. Decided June 28, 1985. 

Dismissal of first complaint; failure to pay promptly-Decision. 

Complainant, pro se. 
Respondent, pro se. 

Decision by Donald A. Campbell, Judicial Officer. 
DECISION AND ORDER 

This is a reparation proceeding under the Perishable Aerieultnr 
al Commodrtw Act, 1983, as amended (7 U.S.C. 499a j e ) A 
toe y complamt was filed in which complainant s eks an aZd of 

of ^,938.00 In con' 



cucumbers f 



S is the De Ptment's report of 

in di H anSW !?'' SinC6 " S not verified ' is t 
eviden i, 1 V ' the P artles were Blven an opportunity to 



FINDINGS OF FACT 



June 6, 1983; Lot #5857 

141 Super Cukes at $10.00 

60 Small Cukes at $8 00 $1410.00 

125 Select Cukes at $6 00 400 - 00 

750.00 

$2,560.00 



CHAPMAN FRUIT CO. v. TRI-STATE SALES AGENCY 1367 

Volume 44, Number 3 



June 10, 1983; Lot #5879 

200 Super Cukes at $11.00 $2,200.00 

50 Small Cukes at $9.00 450 - 

70 Select Cukes at $7.00 553 - 

50 Large Cukes at ,$3.50 175 - QO 

$3,378.00 



4. On or about June 6, and June 10, 1983, complainant shipped 
he cucumbers referred to in Finding of Fact 3 from loading point 
i Zolfo Springs, Florida to respondent in Pittsburgh, Pennsylva- 
ia, 

5. Respondent accepted the two loads of cucumbers after arrival 
i Pittsburgh, Pennsylvania, and has not paid complainant any 
art of the purchase price thereof. 

G. The informal complaint was filed on March 22, 1984, which 
as within nine months after the cause of action as to the ship- 
ient of June 10, 1983, accrued, but was not within nine months 
iter the cause of action relative to the shipment of June 6, 1983, 
Jcrued. 

CONCLUSIONS 

Respondent's answer to the formal complaint was not verified 
id therefore is not deemed to be in evidence in this proceeding. 
>nsequently such answer only serves to form the issues^ between 
>e parties. See H. & M. Fujishige v. Phillips, 30 Agric. Dec. 1095 



- u f 

Respondent stated in his answer that the cucumbers were sold to 
arence Miller Co., Inc., in Pittsburgh, Pennsylvania with re- 
ondent acting only as a broker. Respondent admitted that he ma 
>t take immediate exception to the invoices sent to hi 'by com- 
ainant. The documentation in the record as dl as the swoin 
mplaint support the position of the complainant that the cucum- 
irs were purchased by respondent. 

Section 6a of the Act (7 U.S.C. 499fb prov,des in relevan part 
at "Any person complaining of any violation o ? an, P o 
;c tion 2 of this Act by any commission merchant dealer or 
oker may, at any time within nine monhs after fl,e ^ 
Man accrues, apply to the Secretary by P^^J^fr. 

3 icm of the Act is ^^^"^.t^S^k. & M. Banana 
rs Service Co., Inc., 33 Agric. ^ . 1 .^^ on 46 . 2 (aa) of the 
, v. Rakovich, 18 Agric Dec_504 (1 59 . J^J nt 

Apartment's regulations (7 CFR 6.2 aaj prov ^d 
c produce purchased by a buyer, in order v 



H68 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Tnnfin ^ minimum transportation time of two days as to the 

ORDER 

w ^i3r from the , date f this rder ' res p d -t <*" 

at the rate o^n '' epara lon ' * 3 '. with interest thereon 
rate of 13% p er annum from July ^ lggg _ ^.j ^ 



MISCELLANEOUS 1369 

Volume 44, Number 3 

MISCELLANEOUS REPARATION DECISIONS 

V. V. VOGEL & SONS FARMS, INC. v. CONTINENTAL FARMS, INC., 
PACA Docket No. 2-6191. Decided May 10, 1985. 

James R. Befts, Tampa, FL, for complainant, 
Joseph A. McGlothlin, Tampa, FL, for respondent. 

Decision by Donald A, Campbell, Judicial Officer, 

STAY ORDER 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 etseq.\ a Decision 
and Order was issued on March 21, 1985, awarding reparation to 
the complainant in the amount of $7,704.00 plus additional repara- 
tion of $2,137.50 for fees and expenses. By letter received April 4, 
19S6, respondent has moved that this matter be reconsidered. 

Accordingly, the order of March 21, 1985 is hereby stayed. Com- 
plainant may have ten (10) days from receipt of this order to file an 
answer to the petition for reconsideration. 



GOLD COAST PACKING, INC., v. H. SCHNELL & COMPANY, INC., and/or 
LLOYD MEYERS Co., INC., PACA Docket No. 2-6414. Decided 
May 15, 1985. 

Thomas Oliueri, for complainant, 

frving Coopcrsmith, Esquire, for respondent. 

Decision by Donald A, Campbell, Judicial Officer. 
OISDER GRANTING RECONSIDERATION AND REOPENING PROCEEDING 

A Decision and Order was issued in this matter on December 17, 
1984, awarding reparation to complainant against H. Schnell & 
Company in the amount of $3,404, plus interest, and against re- 
jpondent Lloyd Meyers Co., Inc. in the amount of $7,522, plus inter- 
est. On January 30, 1985, the order of December 17, 1984 was 
stayed and respondent Lloyd Meyers Co., Inc. was granted ten days 
Vom date of receipt of the order in which to file a petition to 
*ehear, reargue and reconsider. A petition was filed within the 
ime allowed and such petition was served upon the other parties 
.o the proceeding. On March 18, 1986, complainant filed a reply to 

he petition. , * ,, j c T\ 

Respondent Lloyd Meyers Co., Inc. asserts that the order of De- 
lember 17, 1984, was in error in making any award against such 
e^ondent. Respondent points out that it submitted evidence 



1370 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

during the proceeding in the form of a sworn statement by Lloyd 
Meyers that "No funds were ever received by Lloyd Meyers Co, Inc. 
for A & J Produce paying for [the load of produce in dispute]," Re- 
spondent also pointed out that no evidence was ever introduced 
from A & J Produce in the form of a sworn statement to the con- 
trary. Complainant, in its reply to respondent's petition refers us to 
the answer of H. Schnell & Company, Inc. and exhibit 8 attached 
thereto, which purports to be a photocopy of a check, number 9829, 
from A & J Produce Corp., in the amount of $7,787.20, stating on 
its face to be for produce in the amount of $7,522 and brokerage in 
the amount of $265.20, and made out to Lloyd Meyers Co. Com- 
plainant also asserts that "attached as a part of the evidence was 
the reverse side of this check showing the endorsement of Mr. 
Meyers. . ." The copy in the Hearing Clerk's file, purporting to be 
the reverse side of check No. 9829, is so dark that it is impossible 
to tell if there is any endorsement by Lloyd Meyers Co., Inc. there- 
on. Moreover, there is no evidence in the record that such copy is 
of the reverse side of check No. 9829. In addition there is no state- 
ment in the record from A & J Produce which would lay any type 
of foundation for the check as evidence in this proceeding. 

In order that this matter may be properly reconsidered, and this 
important factual issue correctly resolved, this proceeding is 
hereby ordered reopened and the record is remanded to the Presid- 
ing Officer so that the interested parties may be given opportunity 
to submit evidence bearing on this issue. 



S. STAMOULES INC. a/t/a STAMOULES PRODUCE, v. A&J PRODUCE 
COUP., PACA Docket No. 2-6630. Decided May 15, 1985. 

Dismissal, 

Decided by Donald A. Campbell, Judicial Officer. 
ORDER OF DISMISSAL 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et segj. A 
timely complaint was filed in which complainant seeks reparation 
against respondent in the amount of $18,569.52 in connection with 
a transaction involving the shipment of melons in interstate com- 
merce. 

A copy of the formal complaint was served on respondent. By 
letter dated March 22, 1985, complainant notified the Department 
that respondent tendered to complainant a check in full settlement 



1371 

MISCELLANEOUS 

Volume 44, Number 3 

, . f m its letter of March 22, 
<f complainant's claim. Complainant, in 
W85. authorized dismissal of its comptantWed^^ 
Accordingly, the complaint is hereby a 

* TONO COMMUNAL PRODUCE CORP- 

P a f^~ ,, T? A t DM fit L/ONU v^u" 

rAt>PAS & x>O U. rvALirn w- >-"- 

PACA Docket No. 2-6504. Decided Ma 
Reinstatement Decision and Order. 

Gontplamant, pro se. 

Respondent, pro se. 

by Donald A. Campbell, Judicial 



VACATING STAY, REINSTATING B- ^ Agrioultural 

In this reparation proceeding under fc^ ^ e( se? .), a Dec.sion 
Commodities Act, 1930, ^amended U ^ ^^^ r ^tio 
and Order was issued on February 2, 1 Respon dent filed ^ P 
the complainant in the amount rf** 1 ^,. wa s issued on AP 
tition for reconsideration, and a DWJ Decis i n 



-s ,. 



ice Reports cited in *e Dec^onan^ .^ would have ^ 
by another firm, show that the mew g . on gnd orden ^ 
a y higher price than found by the , g ta t ^ ^ 

melons had been as w-"* Ustin gs as ^'^'"f ^ly a "few- 
Market News Semce Keporte l tQ app iy to o y . n ^ 

carton price when such pnce ca rton Pjce J ^ Ord er 
sales is erroneous. The 10W^ d by the D ec f additio nal evi- 
Market News Service Repor* . introduction of a ^ i9sible 
W as correct. Responden t . a temp , P respond 

dence to S how the resul^ *f CFR 47.24** Ev ^ t 
at thU point in the P^ ed r f consid ered it wuW^ Keports . K e- 
ent's P ropo S ed evidence : were < Marke t News ^ - ssed with out 



1985, Decision and 



PERISHABLE AOBICULTUHAL COMMODITY ACT 
Volume 44, Number 3 



Sha " ' P*' d within 30 days from the date of 



N ,, PACA 

Order; continuance, 



-, for complainant. 
prose, 



Decision by Dm ald A. CampM l, J udicial Officer 



ORDER 



amm ae *'>*" 

Omely complaint was filed in w^h ^ (? , U ' S ' C ' 4 " a ei ^ A 
of $6,535.64 against re pondent fn , COm P mnant se *s reparation 
interstate commerce Tnvolvin" 1 "* with transactions in 

formal complaint was slrtdL^ 6 "' 8 , f lettUCe ' A c ^ of the 
filed an answer thereto P res P ndent - * respondent has 



whose 

Tammaro, Inc., is a corp'oraHnn ' "^ Res Pdent, Anthony 
binsville, New J * R ' B X G ' 



-nt was rspont 

Bankruptcy Court, Ms cUf N " ^ fUed fa the United Stata 
reorganization pu suant o rh?7 ^ 6y ' 3 volunt ary petition for 
U.S.C. 1101-n74) The DepS: ' f ^ Bank P^ Act (11 
charge in the bankrupt ^ T' als was advised *at a dis- 
claim before the Department Ing W Uld be a release of 

an actionllo 3 Mng ro a Vi d d e e bt f o r r,l n aUto " lat 1 ic sta y Against continuing 
*e Bankruptcy Code ThZf Party has filed a P etitio ""der 
W thta rap^t^^^/ j aocorianoe with 1! U.S.C. 

Partment receives proper nnt.T- f - y continued unt the De- 
ini now pending in Pr t h P e e S C S Z B 3t ^ ^^ U pr Ceed - 
closed, dismisssed, or converted t" ^ Bankru P tc y Court has been 
debfa have been U.CSXLf 1 ? 1 '* 4 bankru P^ that the 
rangement. g through confirmation of a Plan of Ar- 



MISCELLANEOUS 1373 

Volume 44, Number 3 

RICHARD C. CRANE v. HEIDEMA FRUIT AND PRODUCE COMPANY, 
PACA Docket No. 2-6738. Decided May 20, 1985. 

Complainant, pro se. 

Respondent, pro se, 

Decision, by Donald A. Campbell, Judicial Officer, 

ORDER VACATING ORDER, REOPENING AFTER DEFAULT, 
REINSTATING DEFAULT ORDER 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 et segO, a Default 
Order was issued on December 12, 1984, awarding reparation to the 
complainant in the amount of $19,232.12, Respondent moved that 
this matter be reopened and, on March 13, 1985, an order was 
issued reopening the case after default. The March 13, 1985, order 
directed respondent to file its answer within 10 days from its re- 
ceipt of such order. Respondent has failed to submit an answer. 
Therefore, the March 13, 1985, order reopening after default is va- 
cated, and the December 12, 1984, Default Order is reinstated. Re- 
spondent shall pay the amount awarded in the December 12, 1984, 
order plus interest within 30 days from the date of this order. 



BELRIDGE PACKING Co. v. FIRST QUALITY FRUIT & PRODUCE Co., 
INC., and/or C. H. ROBINSON COMPANY, PACA Docket No. 2- 
6451. Decided June 3, 1985. 

Order. 

Thomas Otiveri, for complainant. 
Ottfcn Gfeason, Esquire, for respondent. 

decision by Donald A. Campbell, Judicial Officer, 
ORDER UPON RECONSIDERATION 

In this reparation proceeding under the Perishable Agriculturj 
Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.\ ai 
order was issued on February 27, 1985, awarding reparation tc 
complainant in less than the amount claimed. On March 11, 1985, 
complainant requested that the order of February 27, 1985, be 
stayed and that complainant be granted an extension of time in 
wtiich to file a petition for reconsideration. Pursuant to this re- 
quest, the order of February 27, 1983, was stayed pending issuance 
of a further order in this proceeding, and complainant was granted 
an extension of time until March 29, 1985, in which to file a peti- 



1374 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

tion for reconsideration. Complainant filed its petition on March 
20, 1985. Such petition was not served upon respondent. 

We have reconsidered our prior order and find that complain- 
ant's contentions in its petition are without merit. The order of 
February 27, 1983, is supported by the evidence and law applicable 
thereto, Accordingly, complainant's petition should be, and hereby 
is, dismissed. The order of February 27, 1983, is hereby reinstated, 
and the reparation awarded to complainant in that order shall be 
paid within 30 days from the date of this order. 



HILBERT, INC. v. ROBERT R. COWGILL d/b/a VALLEY DISTRIBUTING 
Co., and/or W. E. RILEY AND SON, INC., and/or B, P. TKAPPEY'S 
SONS, INC., PACA Docket No. 2-6510, Decided June 3, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 



ORDER ON RECONSIDERATION 



In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.), a Deci- 
sion and Order was issued on March 28, 1985, dismissing the com- 
plaint against all three respondents. By letters received April 16, 
1985, and April 24, 1985, complainant has petitioned for reconsider- 
ation. Complainant's arguments in support of its petition for recon- 
sideration either have already been considered, or are based upon 
conclusions which are not supported by record evidence. Therefore, 
upon reconsideration, we find that the Decision and Order of 
March 28, 1985, is supported by the evidence and the law applica- 
ble thereto. Accordingly, the complainant's petition for reconsider- 
ation is dismissed without serving copies thereof upon respondent. 



BRYANT PACKING Co. v. M. OFFUTT Co., INC., and ADOLPH B. CIMINO 
Co., PACA Docket No. 2-6518. Decided June 3, 1985, 

Steven Paganetti, for complainant. 
Respondent, pro se, 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER UPON RECONSIDERATION 



Perishable Agricultural 
' S - C - *Wa et ^>, an 

ar ding reparation to complain- 



1375 
MISCELLANEOUS 

Volume 44, Number 3 



an t against 

$5,820.80, plus interest. On March 2 Vl Hn^Ss which was 
Cd.. Inc., filed a letter, with supporting ^uments w ^ 

treated as a petition for reconsideration. On Aprn , 
order of March 21, 1985, was stayed pendng issuance ot 
order in this proceeding, and the petition ^ * ' 
served upon complainant and f s P nden P h e *; tition . No re- 
who were given 10 days in which to V^%J% allo wed; 
sponse was received from complainant w hin ^^^ to the 
however, respondent Adolp B. Cimmo Co. filed an opp 

P etition - ^ T MA not allege in its petition any 

Sid sought to present 



j-iic omit iwi vi*w o " , __r i-Vip order 01 J 

shortened procedure, prior to the issu f\ . ft petition for 
21, 1985. New evidence cannot be cons ^ ae ; ^^ ^ j nCij 33 Agric. 
sideration. -Daue Wafe/z. Co., Inc. v. i er y wor th Pickle Co., 21 
Dec, 1131 (1979); and Shelby Farms v. w _ ^ &nd 

Agric. Dec. 399 (1962). Accordingly * ^ 1985i is hereby re- 
hereby is, dismissed, and the order *Mhffl'J ^ reparation 
instated, except that the time tor payrn d&te rf ^ 

awarded therein shall be within 30 days trom 
order. 



C. A. MlLOSLAVICH V. 

JUGOS DEL VALLE, . 

Docket No, 2-6438. Decided June 11, 



Stay Order. 

. r 7^ j rnmobell, Judicial Officer. 

Decision by Donald A. Campoeu, Peris hable Agricultural 

In this reparation proceeding unaeij ^ ^ a Declslon 

Commodities Act, 1930, "r^^^dtag reparation to the 
and Order was issued on April 22 1JB&, _^ ^.^ received May 
respondents in the amount ot *ww - . b& reheard or r e- 

8, 1985, complainant has moved that this 

considered. 22 198 5, is hereby stayed. Ke- 

Accordingly, the order of Apru 6 , ^^^ rf thw order to 

Untro tiftsen UOJ u.aj'o JJ Q ,. 

D rehear and reconsider. 



1376 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

n Co f p - " NORMAN M. COFFIN, INC, PACA Docket No. 
. Decided June 11, 1985. 

Stay Order. 

Decision by Donald A. Campbell, Judicial Officer. 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 et seq .) a Decision 
and Order was issued on March 18, 1985, awarding reparation to 

Ann T I^T m th / am Unt f $1 ' 3 9 - 00 - B * P etition ree ^ed 
April 24, 1985, respondent has moved that this matter be reconsid- 

Accordingly, the order of March 28, 1985, is hereby stayed. 



NASH-DECAMP COMPANY . FLOYD J. BEYER, PACA Docket No. 2- 
6667. Decided June 14, 1985. 

Stay Order. 

Decision by William J. Weber, Judicial Officer. 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 et seq^ a Decision 
and Order was issued on April 22, 1985, awarding reparation to the 
complainant in he amount of $700.00. By telegram received May 6, 
1985 Despondent has moved that he be given a chance to file a peti- 
tion for reconsideration. 

Accordingly, the order of April 22, 1985 is hereby stayed Re- 
spondent will have 20 days from the receipt of t^L^Tmf* 
f K reconside 1 ration > stating specifically the matters 
to be erroneously decided and the alleged errors. 



MISCELLANEOUS 1377 

Volume 44, Number 3 

that it be granted an extension of time in which to file a petition 
for reconsideration. 

Accordingly, the order of April 29, 1985 is hereby stayed. Re- 
spondent will have until June 28, 1985, in which to file its petition 
for reconsideration. 



BUSHMAN POTATO SALES v. IDEAL FOODS, INC., PACA Docket No. 2- 
6626. Decided June 17, 1985. 

Slny Order. 

Decision by Donald A. Campbell, Judicial Officer. 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 et seq.), a Decision 
and Order was issued on April 29, 1985, awarding reparation to the 
complainant in the amount of $8,550.00. By letter received May 16, 
1985, respondent has moved that this matter be reheard and recon- 
sidered. 

Accordingly, the order of April 29, 1985, is hereby stayed. Com- 
plainant may have fifteen (15) days from receipt of this order to file 
an answer to the petition to rehear and reconsider. 



S, & M. PRODUCE, INC. v. LA PREFERIDA, INC., PACA Docket No. 2- 

6491. Decided June 25, 1985. 
Decision by Donald A. Campbell, Judicial Officer. 

ORDER ON RECONSIDERATION AND DISMISSAL OF 
PETITION FOR REOPENING 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499a e t seg.),^ 
order was issued on October 5, 1984, awarding reparation to com- 
plainant against respondent. On October 16, 1984, respondent ffled 
a petition for reconsideration and to reopen the Proceeding to take 
further evidence. On November 7, 1984, the order of October 5, 
984 was stayed pending the issuance of a furth ^ 
and a copy of respondent's petition was ordered and served 



00 Re P spondent requests that the proceeding be reopened in order 
that further evidence might be offered. We treat this request aa a 
pe^ion for rehearing since a petition to reopen must be filed pnor 



1378 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

to the issuance of the final order. See section 47.24(b) of the Rules 
of Practice (7 CFR 47.24(b)). Respondent had ample opportunity 
during the course of the shortened procedure to submit the evi- 
dence which it now seeks to submit. Its failure to do so at that time 
is no reason for us to grant a rehearing in this case. 

Respondent's petition for reconsideration must also be denied, 
We have reconsidered our order of October 5, 1984, and find that 
respondent's contentions are without merit and that the order is 
supported by the evidence and law applicable thereto. Accordingly, 
respondent's petition to reconsider and rehear is dismissed. The 
stay order of November 7, 1984, is hereby vacated and the order of 
October 5, 1984, is reinstated. The reparation awarded to complain- 
ant in that order shall be paid within thirty days from the date of 
this order. 



GULF LAKE PRODUCE Co. y. MAURICE D. HILL d/b/a DIAMOND T, 
FRUIT Co. a/t/a DIAMOND T. FRUIT SALES, PACA Docket No. 2- 
6714. Decided June 25, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 

ORDER OF CONTINUANCE 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et seq,). A 
timely complaint was filed in which complainant seeks reparation 
of $93,034.68 against respondent in connection with transactions in 
interstate commerce involving shipments of peaches. A copy of the 
formal complaint was served upon respondent, and respondent has 
filed an answer thereto. 

Complainant, Gulf Lake Produce Co., is a partnership whose ad- 
dress is P.O. Box 697, Belle Glade, Florida. Respondent, Maurice D. 
Hill d/b/a Diamond T. Fruit Co. a/t/a Diamond T. Fruit Sales, is 
an individual whose address is P.O. Box 841, Hendersonville, North 
Carolina. Respondent was operating subject to license under the 
Act at the time of the transactions involved herein, 

Prior to the Decision and Order in this proceeding, the Depart- 
ment was advised that respondent had filed in the United States 
Bankruptcy Court, on November 4, 1982, a voluntary petition for 
reorganization pursuant to Chapter XI of the Bankruptcy Act (11 
U.S.C. 1101-1174). The Department also was advised that on 
April 15, 1985, the case was converted to a Chapter 7 liquidation 
(IIU.S.C. 701eUe<?.), 



1379 

MISCELLANEOUS 

Volume 44, Number 3 

. ,ip stay against continuing 

11 U.S.C. 362 provides for an automate f y ^ n d 

an action involving a debt once a pa ; t >** * ^ n y.S_C- 

the Bankruptcy Code. Therefore in ace, ^ unti i the De- 

362, this reparation proceeding is nere y ^^ have been de- 
partment receives proper notifica tion that 
charged through the Chapter 7 liquidation. 



GORDON FOODS and/or 
G&H SALES, INC. u. ACTION Co., ^ NC '^ OIN ^ SI pACA Docket No. 2- 
HILAND POTATO CHIP Co. OF UES 
6722. Decided June 25, 1985. 
Decision by Donald A. Canpbell, Judicial Officer. 

nuntttt OF DISMISSAL 

apr the Perishable Agricul tu 

This is a reparation proceeding unto to 490a d w A 

al Commodities Act, 1930 as ^^plainant seeks reparatio" 
timely complaint was filed in which^ c ^^ n 56 in connection witn 



meat of compa aate. 

1985, indicated that the checks had ^ days to 

19, 1985, the Department gave comP d ^ rt ^^to di S - 

why the complaint should not be considered a consent 
plainant's failure to s P ond ." d U fr oro complainant, 
missal. No response was receiv dismiss ed. 

Accordingly, the complaint is here 

PACA Docket No. 2- 

T ,oo DS , - F DS IN " 
Decided June 25, 



6739. Decided JUHC - officer- 

OBDER OF DISMISS ^^ A g ricu ltur^ 

mceeding under i" 4gga gf se qj. ft. 

This is a reparation pro amende d (7 V^' seeUa reparation 

IT S&^ r^ft^SSS in connection ^ 
against respondent m the a 



1380 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

a transaction involving the shipment of strawberries in interstate 
commerce. 

A copy of the formal complaint was served on respondent. By 
letter dated April 4, 1985, respondent indicated that complainant 
had filed in the Municipal Court of the Santa Cruz County Judicial 
District, State of California, County of Santa Cruz, on March 1, 
1985, a complaint (No. 60850137) for $13,215.26, covering the same 
transactions alleged in the reparation complaint. In a letter dated 
April 19, 1985, the Department gave complainant 10 days from its 
receipt of such letter to show cause why its complaint should not 
be dismissed due to its election to proceed in state court, citing 7 
U.S.C. 499e(b). Complainant was told that a failure to respond 
would be considered a consent to dismissal, Complainant did not re- 
spond to the April 19, 1985, letter. 

Accordingly, the complaint is hereby dismissed. 



MAHTORI BROS. DISTRIBUTORS v. HOULEHAN, INC., PACA Docket No. 
2-6771. Decided June 25, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER OP DISMISSAL 

This is a reparation proceeding under the Perishable Agricultur- 
al Commodities Act, 1930, as amended (7 U.S.C. 499a et sen.). A 
timely complaint was filed in which complainant seeks reparation 
against respondent in the amount of $2,218.65 in connection with a 
^ *" ^^ f cantalou P^ * interstate 



Pt cora P laint was served on respondent. By 

hat r e nl^ "' *> complainant notified the Department 

T Plalnant a <** ^ full settlement 

, the complaint is hereby dismissed. 



MISCELLANEOUS 1381 

Volume 44, Number 3 

YAKIMA FRUIT & COLD STORAGE Co. v. INTERNATIONAL A.G., INC., 
PACA Docket No. 2-6104. Decided June 26, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 

ORDER ON RECONSIDERATION 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499a et seg.}, a Deci- 
sion and Order was issued on February 9, 1983, ordering respond- 
ent to pay complainant $4,236.21 as reparation, plus interest in the 
amount of 13% per annum from June 1, 1982, until paid. Respond- 
ent filed a timely Motion for Reconsideration, and the February 9, 
1983, Decision and Order was stayed on March 25, 1983. Complain- 
ant filed an opposition to respondent's Motion. 

For the most part, its Motion for Reconsideration is based upon 
respondent's claims that its damages were miscalculated in the 
previously issued Decision and Order. This claim is based upon the 
failure to include ocean freight in evaluating the value of the 
apples it sold. Respondent points out that, since the transaction be- 
tween it and its customer was a C.T.F. transaction, it (and not its 
customer) was obligated for the freight cost. In a C.I.F. sale, while 
the title passes in accordance with the usual rules applying to f.o,b. 
sales, the "selling price includes insurance and the correct freight 
and refrigeration charges to destination." 7 CFR 46.43(v). A 
review of the documentation of that sale indicates that the sale 
was C.I.F. Therefore, in computing the value of the apples sold t re- 
spondent should have been credited with the cost of ocean trans- 
port. 

In the February 9, 1983, Decision and Order, we found that com- 
plainant had breached its contract with respondent. We also found 
that, since complainant had breached the contract, respondent was 
entitled to a reduction in the contract price by the amount of prov- 
able damages, and that the measure of damages was the difference 
between the value of the produce at the time of delivery and the 
value of the produce had it met contract specifications. Our compu- 
tation of the value of the apples had they been as warranted in- 
cluded the sum of the contract price for the apples ($11,572.50), and 
the Washington to Florida freight cost ($2,763.25), or $14,308.75. We 
computed the value of the goods at $16,666.25 which represented 
the proceeds from respondent's prompt resale, and, as pointed out 
by respondent, should have included an additional $605.00 which it 
received for 55 cartons of the apples. From this amount 
($17,271.25), since respondent's sale was C.I.F., we should have de- 
ducted respondent's cost for ocean freight, or $4,656.60. The actual 



1382 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

value of the apples sold was, therefore, $12,614.65 ($17,271.26 
-$4,656.60). Inasmuch as the respondent's cost for the apples 
($14,308.76) exceeded the value of the apples sold ($12,614.66) by 
$1,694.10, respondent has proven damages exceeding its contractual 
obligation to complainant. Accordingly, the complaint should have 
been dismissed. 

In accordance with the above, the Order of February 9, 1983, is 
amended as follows: 

ORDER 

The complaint is dismissed. 



J-B DISTRIBUTING Co. v. CITY WIDE DISTRIBUTORS, INC, PAGA 
Docket No. 2-6386. Decided June 26, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER ON RECONSIDERATION 

A Decision and Order was issued in this proceeding of February 
19, 1985, awarding reparation to complainant in the amount of 
$2,130.00, plus interest. On March 12, 1985, respondent filed a peti- 
tion for reconsideration, as a result of which the Order was stayed 
pending reconsideration. 

The major thrust of respondent's petition for reconsideration was 
that the decision was based on inadmissible evidence. Respondent 
predicated its argument in this regard on its belief that unsworn 
evidence cannot be considered as evidentiary. However, in a pro- 
ceeding of this nature certain unsworn evidence may be treated aa 
evidentiary. Pursuant to 7 CFR 47.7; 

Where the facts and circumstances are deemed by the Di- 
rector to warrant such action, the Division shall serve 
upon each of the parties a copy of the report made by the 
Division in connection with its investigation of the Infor- 
mal or formal complaint. Whenever the Secretary, or the 
Director, or the examiner deems it necessary, a supple- 
mental investigation shall be made by the Division and a 
copy of the report thereon shall be served upon the par- 
ties. If an answer is filed by respondent, a copy of any 
report or reports of investigation served upon the parties 
shall be filed with the hearing clerk and shall be consid- 
ered as part of the evidence in the proceeding: Provided, 
lhat either party shall be permitted to submit evidence in 



MISCELLANEOUS 1383 

Volume 44, Number 3 

rebuttal in the same manner as is provided in the regula- 
tions in this part for the submission of other evidence in 
the proceeding, (emphasis added). 

The above-quoted provision makes it clear that properly served 
reports of investigation are evidentiary in nature. In proceedings of 
this kind, where there is no opportunity for cross-examination of 
witnesses, it is often necessary that the presiding officer have avail- 
able more evidence than the parties usually provide so as to assure 
that his decision is proper. The investigative report, including the 
attachments thereto, frequently provides the information necessary 
to reach a fair resolution of the dispute. Such is the case in this 
proceeding in which the evidence furnished by the parties was in- 
conclusive and incomplete. The investigative report contained 
statements by Arthur M. Zurhorst of Corry Brokerage, and other 
information, which was essential to a full understanding of the 
nature of the dispute. 

Respondent acknowledged in its conclusion that the decision of 
this tribunal is sustainable when it said in its Petition for Recon- 
sideration that; 

Two theories can explain this sequence of events: the first 
being the conclusion of the Tribunal, which is based on in- 
admissible evidence; the second being the Respondent's, 
which is based on admissible evidence. 

Since the evidence relied on was admissible, we find no reason to 
change our decision because there was insufficient evidence. 

Respondent's claim that it cannot be held liable because Corry 
Brokerage was not its agent lacks merit. As shown by its broker's 
memorandums, the facts show clearly that Corry Brokerage acted 
on its understanding that it had been given authority by respond- 
ent to negotiate purchases on its behalf. The function of a broker is 
to negotiate a purchase and sale for both parties. To this extent it 
is usually not considered to be the agent for only one party. In this 
case, if we were to find it to be the agent for one party as opposed 
to the other, the evidence of record would lead us to conclude it 
acted as respondent's agent since respondent had previously en- 
tered an arrangement with City Wide Distributors of Arkansas, 
Inc. under which Corry Brokerage had been given authority to 
make purchases on its behalf, which authority was not shown to 
have been rescinded prior to the date of the transactions. See Ja- 
cobsen Produce, Inc. v. R. L. Burnett Brokerage Company, a/t/a 
Best Potato Products Company, 37 Agric, Dec. 1743 (1978). The prior 
activities of respondent obviously placed apparent authority in 
Corry Brokerage to act on its behalf. As stated in George Arakelian 



1384 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Farms, Inc. v. Leonard O'Day Company, 31 Agric. Dec. 1395, 1401 
(1972), "By placing Kirchberg in a position of having apparent au- 
thority to act for him, O'Day thus became liable to complainant 
notwithstanding his lack of actual authority. In situations such ns 
this where a principal by any act or conduct knowingly causes or 
permits another to appear as his agent, either generally or for a 
particular purpose, he will be estopped to deny such agency/' 

In view of the above, the only other point raised by respondent 
that needs to be addressed is whether respondent was subject to li- 
cense. Respondent denies that it purchased $230,000.00 worth of 
produce in 1983. Thus, it claims it was not subject to license ns n 
retailer during that year. However, it ignores the other jurisdic- 
tional basis for licensing, i.e. that the business of buying or selling 
at least 2,000 pounds of produce in any day would subject it to li- 
cense as a dealer. See 7 U.S.C. 499a(6) and 7 CFR 46.2(x). Re- 
spondent does not claim that it was solely a retailer. 

All other issues raised by respondent were adequately addressed 
in the original Decision and Order. 

In view of the above we find that the February 19, 1985 Decision 
and Order is supported by the evidence and the applicable law. Ac- 
cordingly, the petition for reconsideration is dismissed. The Order 
of February 19, 1985 is reinstated, except that the reparation 
awarded shall be paid within 30 days from the date of this Order. 



DONALD F. NICOLAUS d/b/a D-N PRODUCE v. CITY WIDE DIBTHIBU- 
TORS, INC., PACA Docket No. 2-6421. Decided June 26, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER ON RECONSIDERATION 

A Decision and Order was issued in this proceeding on January 
31 1985, awarding reparation to complainant in the amount of 
$1,675.00, plus interest. On February 19, 1985, respondent filed a 
petition for reconsideration, as a result of which the Order was 
stayed pending reconsideration. 

f^!u m 1 r thrUSt f res P ndent ' s Petition for reconsideration was 
tnat the decision was based on inadmissible evidence. Respondent 
predicated its argument in this regard on its belief that unsworn 
evince cannot be considered as evidentiary. However, in a pro- 

SK ' natUre Certain Un8w evidence may be treated as 
evidentiary,, .Pursuant to 7 CFR 47.7; 



MISCELLANEOUS 1385 

Volume 44, Number 3 

Where the facts and circumstances are deemed by the Di- 
rector to warrant such action, the Division shall serve 
upon each of the parties a copy of the report made by the 
Division in connection with its investigation of the infor- 
mal or formal complaint, Whenever the Secretary, or the 
Director, or the examiner deems it necessary, a supple- 
mental investigation shall be made by the Division and a 
copy of the report thereon shall be served upon the par- 
ties. If an answer is filed by respondent, a copy of any 
report or reports of investigation served upon the parties 
shall be filed with the hearing clerk and shall be consid- 
ered as part of the evidence in the proceeding: Provided, 
That either party shall be permitted to submit evidence in 
rebuttal in the same manner as is provided in the regula- 
tions in this part for the submission of other evidence in 
the proceeding, (emphasis added). 

The above-quoted provision makes it clear that properly served 
reports of investigation are evidentiary in nature. In proceedings of 
this kind, where there is no opportunity for cross-examination of 
witnesses, it is often necessary that the presiding officer have avail- 
able more evidence than the parties usually provide so as to assure 
that his decision is proper. The investigative report, including the 
attachments thereto, frequently provides the information necessary 
to reach a fair resolution of the dispute. Such is the case in this 
proceeding in which the evidence furnished by the parties was in- 
conclusive and incomplete. The investigative report contained 
statements by Arthur M. Zurhorst of Corry Brokerage, and other 
information, which was essential to a full understanding of the 
nature of the dispute. 

Respondent acknowledged in its conclusion that the decision of 
this tribunal is sustainable when it said in its Petition for Recon- 
sideration that: 

Two theories can explain this sequence of events; the first 
being the conclusion of the Tribunal, which is based on in- 
admissible evidence; the second being the Respondent's, 
which is based on admissible evidence. 

Since the evidence relied on was admissible, we find no reason to 
change our decision because there was insufficient evidence. 

Respondent's claim that it cannot be held liable because Corry 
Brokerage was not its agent lacks merit. Aa shown by its broker's 
memorandums, the facts show clearly that Corry Brokerage acted 
on its understanding that it had been given authority by respond- 



1386 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

ent to negotiate purchases on its behalf. The function of a broker is 
to negotiate a purchase and sale for both parties. To this extent it 
is usually not considered to be the agent for only one party. In this 
case, if we were to find it to be the agent for one party as opposed 
to the other, the evidence of record would lead us to conclude it 
acted as respondent's agent since respondent had previously en- 
tered an arrangement with City Wide Distributors of Arkansas, 
Inc. under which Corry Brokerage had been given authority to 
make purchases on its behalf, which authority was not shown to 
have been rescinded prior to the date of the transactions. See Ja- 
cobsen Produce, Inc. v. R, L. Burnett Brokerage Company, a/t/ci 
Best Potato Products Company, 37 Agric. Dec. 1743 (1978). The prior 
activities of respondent obviously placed apparent authority in 
Corry Brokerage to act on its behalf. As stated in George Arakelian 

now'*' U ' Leonard ' Da y Co ^Pany, 31 Agric. Dec. 1395, 1401 
(1972), "By placing Kirchberg in a position of having apparent au- 
thority to act for him, O'Day thus became liable to complainant 
notwithstanding his lack of actual authority. In situations such as 
this where a principal by any act or conduct knowingly causes or 
permits another to appear as his agent, either generally or for n 
particular purpose, he will be estopped to deny such agency." 

In view of the above, the only other point raised by respondent 
that needs to be addressed is whether respondent was subject to li- 
cense. Respondent denies that it purchased $230,000.00 worth of 
produce :n 1983. Thus, it claims it was not subject to license as a 

hat year ' H wever > h to"** ?he other 



in theoriZTn 8 ^ *?*<*** were adequately addressed 
m cne original Decision and Order 



MISCELLANEOUS 1 337 

Volume 44, Number 3 



SEABOARD PRODUCE DISTRIBUTORS v. CITY WIDE DISTRIBUTORS, INC., 
PACA Docket No. 2-6471, Decided June 26, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER ON RECONSIDERATION 

A -Decision and Order was issued in this proceeding on February 
Q',II ' awardin reparation to complainant in the amount of 
W71.06, plus interest. On March 18, 1985, respondent filed a peti- 
tion for reconsideration, as a result of which the Order was stayed 
pending reconsideration. 

fT, T f h !i, ma ^ 0r thrust of respondent's petition for reconsideration was 
that the decision was based on inadmissible evidence. Respondent 
predicated its argument in this regard on its belief that unsworn 
evidence cannot be considered as evidentiary. However, in a pro- 
ceeding of this nature certain unsworn evidence may be treated as 
evidentiary. Pursuant to 7 CFR 47,7; 

Where the facts and circumstances are deemed by the Di- 
rector to warrant such action, the Division shall serve 
upon each of the parties a copy of the report made by the 
Division m connection with its investigation of the infor- 
mal or formal complaint. Whenever the Secretary, or the 
Director, or the examiner deems it necessary, a supple- 
mental investigation shall be made by the Division and a 
copy of the report thereon shall be served upon the pai- 

J f rJS^J!^^. I ^*?^ * W of Iny 



Up n the 

r . - clerk *<* Bhall be - 

f f foe cadence in the proceeding: Provided, 

nff ^r 1 "^ ShaU be P ermitted to submit evidence in 
rebuttal m the same manner as is provided in the regula- 
tions in this part for the submission of other evidence in 
the proceeding, (emphasis added). 

The above-quoted provision makes it clear that properly served 
reports of mveshgation are evidentiary in nature. In proceedings of 
this kind, where there is no opportunity for cross-examina on of 
wi nesses, it is often necessary that the presiding officer have all- 
able more evince than the parties usually provide so as to assure 
that hia decision is proper. The investigative report, including the 

E T f ! ? qUe ^ Pr VideS the info ^ation necessary 

to reach a fair resolution of the dispute. Such is the case i rtS 
proceeding in which the evidence furnished by the parties was in 
conclusive and incomplete. The investigative report ; coM^H 
statements by Arthur M. Zurhorst of Corry BrokeTage, S o^or 



1388 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

information, which was essential to a full understanding of the 
nature of the dispute. 

Respondent acknowledged in its conclusion that the deciaion of 
this tribunal is sustainable when it said in its Petition for Recon- 
sideration that: 

Two theories can explain this sequence of events: the first 
being the conclusion of the Tribunal, which is based on in- 
admissible evidence; the second being the Respondent's, 
which is based on admissible evidence. 

Since the evidence relied on was admissible, we find no reason to 
change our decision because there was insufficient evidence. 

Respondent's claim that it cannot be held liable because Carry 
Brokerage was not its agent lacks merit. As shown by its broker's 
memorandums, the facts show clearly that Corry Brokerage acted 
on its understanding that it had been given authority by respond- 
ent to negotiate purchases on its behalf. The function of a broker is 
to negotiate a purchase and sale for both parties. To this extent it 
is usually not considered to be the agent for only one party. In this 
case, if we were to find it to be the agent for one party as opposed 
to the other, the evidence of record would lead us to conclude it 
acted as respondent's agent since respondent had previously en- 
tered an arrangement with City Wide Distributors of Arkansas, 
Inc. under which Corry Brokerage had been given authority to 
make purchases on its behalf, which authority was not shown to 
have been rescinded prior to the date of the transactions. See JQ- 



MISCELLANEOUS 1389 

Volume 44, Number 3 

cense as a dealer. See 7 U.S.C. 499a(6) and 7 CFR 46.2(x). Re- 
spondent does not claim that it was solely a retailer. 

All other issues raised by respondent were adequately addressed 
in the original Decision and Order. 

In view of the above we find that the February 25, 1985 Decision 
and Order is supported by the evidence and the applicable law. Ac- 
cordingly, the petition for reconsideration is dismissed. The Order 
of February 25, 1985 is reinstated, except that the reparation 
awarded shall be paid within 30 days from the date of this Order. 



BORELLI PRODUCE DISTRIBUTORS v. CITY WIDE DISTRIBUTORS, INC,, 
PACA Docket No. 2-6488. Decided June 26, 1985. 

Decision by Donald A. Campbell, Judicial Officer, 

A Decision and Order was issued in this proceeding on February 
25, 1985, awarding reparation to complainant in the amount of 
$638.50, plus interest. On March 18, 1985, respondent filed a peti- 
tion for reconsideration, as a result of which the Order was stayed 
pending reconsideration. 

The major thrust of respondent's petition for reconsideration was 
that the decision was based on inadmissible evidence. Respondent 
predicated its argument in this regard on its belief that unsworn 
evidence cannot be considered as evidentiary. However, in a pro- 
ceeding of this nature certain unsworn evidence may be treated as 
evidentiary. Pursuant to 7 CFR 47.7; 

"Where the facts and circumstances are deemed by the Di- 
rector to warrant such action, the Division shall serve 
upon each of the parties a copy of the report made by the 
Division in connection with its investigation of the infor- 
mal or formal complaint. Whenever the Secretary, or the 
Director, or the examiner deems it necessary, a supple- 
mental investigation shall be made by the Division and a 
copy of the report thereon shall be served upon the par- 
ties. If an answer is filed by respondent, a copy of any 
report or reports of investigation served upon the parties 
shall be filed with the hearing clerk and shall be consid- 
ered as part of the evidence in the proceeding: Provided, 
That either party shall be permitted to submit evidence in 
rebuttal in the same manner as is provided in the regula- 
tions in this part for the submission of other evidence in 
the proceeding, (emphasis added). 



PERZSHABLE AG RICULTURAL co MMODITIES ACT 
Volume 44, Number 3 



MIL 

reports nestaioareeviri^nr eS ^^ that o P e y serve 
this kind, where there Tno Inf ' y '" natUr6 ' In Proceedings of 
witnesses, it ta often necessarvTT Mty f r '^examination of 
able more evidence than the nnrH p r? siding officer ha avai| - 
that his decision is proper Th/ 8 T a " y provide s as *> > 
attachments theretof freauentTv' 11 .!,' 1 ^^ 6 re P rt . including the 
to reach a f air reso u io" of LT 1 ^ 8 the inf a on necessary 
Proceeding in which tTevln 1 ^t' Su h is the ca ^ in 



evn 

conclusive and incomplete S d by the parties was '"- 

statements by Arthur M. Zurhor^t Tr ^'^ '' ep rt ntalned 
information, which was essen t lal St f f Co /7 Brokerage, and other 
nature of the dispute. ' t0 a ful1 understanding of the 

this\ribut^ that the decision of 

sideration that: en rt sald In s Petition for Recoii- 



oeTv' f events: the 

admissible evidence the ^' Whlch is based on '' 

-hich is based on 3^^* Respondent's, 

Since the evidence vplinH 

change our decision becau^ ^^ we find " reason to 

Respondent's claim tha if i- e Was ,. lnsufficient e "dence. 
Brokerage was not te age n S 1 be f h f ld liable because Corry 
mem r andums , the facteshow 2^ f ^ h Wn by its brake '-' 
on its understanding that itTJ I * &at ^^ Brokerage acted 
ent to negotiate purchase ft *SJ* ^^ "y respond- 
to negotiate a purchase and sa e fn^f ;?" function of a brok ' ^ 

^ usually not considered to be LI V artieS ' T this exte * " 
case lf were to fln it ' hf0 ^ ne 



he 

to he other, the evidence of ecord w " W^ ? P3rty 3S 0p P sed 
acted as respondent's agent si^ d lead us to con <=l"de it 

tered an arrangement w th Srwfn dent had Piously en- 
^ under which Corry BroS a Jhl D ' Stribut rs "f Arkans as> 
make purchases on its behaFwhl f , been given authori ty *o 
have been rescinded prior to thl d ^"^ was not sh to 
cobsen Produce, Inc v R r n f the transactions. See fc. 

e 



-totofl 7 -^ Co mjDan 

achvltte of respondent Tbvbuslv ^ a C ^ 6C ' 1743 (197 - e prior 
Corry Brokerage to act on its S, P ! aCed appare nt authority in 

S"t,^XfS" s "-^.S 

'""" to - " " " ~' 



MIKOKLLANKOUS 
Volume M t Number 3 



notwithstanding his lack of actual authority. In 



such 



etaile during hat year. However, it ignores the other juris! 

t '' IlCenSing ' U ' that the busi " of buying or "ellint 
at least 2,000 pounds of produce in any day would subject it to if 
cense as a dealer. See 7 U.S.C. 499a(G) and 7 CFR 462x) Re 
spondent does not claim that it was solely a retailer 



were 



In view of the above we find that the February 25, 1985 Decision 
r 8UPP rted by the evidence and 1 



law Ac 
a 



w PArAnn C r';\f TO , K ^ E Co ' "' CITY 

INC., 1 ACA Docket No. 2-0412. Decided June 27, 1985. 
Decision li.v Donald A. Campbell, Judicial Officer 

OIIDKK ON ItBCONSiniiltATlON 

A Decision and Order was issued in this proceeding on January 
'if nn T^T n '' )ar " tk) " to complainant in the amount of 

'tto I',,!'" mto .7 l - "" ^""""y 1". 1986- ^pondant fl"ed 
petition lor rucnnmdon.tum, as a result of which the Order was 
stayed ponding rocoiiHidomUon. 



ih 

that . 



iM- 

tat .te docimon WH b.mocl on Inndmissible evidence. Respondent 
pndtciitod ifa. ..nfument in this regard on its belief that unsworn 
evidence cannot bo considored 8 evidentiary. However, in a pro- 
ceeding ol Una nature curtain unsworn evidence may be treated as 
evidentiary. I'urmumt to 7 ( IFK 47.7: 

Where the facts nnd circumstances are deemed by the Di- 
rector to warrant such action, the Division shall nerve 
upon each of tlio purtira n copy of the report mnde by the 
Division in commotion with its investigation of the infer- 



1392 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

mal or formal complaint. Whenever the Secretary, or the 
Director, or the examiner deems it necessary, a supple- 
mental investigation shall be made by the Division and a 
copy of the report thereon shall be served upon the par- 
ties, If an answer is filed by respondent, a copy of any 
report or reports of investigation served upon the parties 
shall be filed with the hearing clerk and shall be consid- 
ered as part of the evidence in the proceeding; Provided, 
That either party shall be permitted to submit evidence in 
rebuttal in the same manner as is provided in the regula- 
tions in this part for the submission of other evidence In 
the proceeding, (emphasis added). 

The above-quoted provision makes it clear that properly served 
reports of investigation are evidentiary in nature. In proceedings of 
this kind, where there is no opportunity for cross-examination of 
witnesses, it is often necessary that the presiding officer have avail- 
able more evidence than the parties usually provide so as to assure 
that his decision is proper. The investigative report, including the 
attachments thereto, frequently provides the information necessary 
to reach a fair resolution of the dispute. Such is the case in this 
proceeding in which the evidence furnished by the parties was in- 
conclusive and incomplete. The investigative report contained 
statements by Arthur M. Zurhorst of Corry Brokerage, and other 
information, which was essential to a full understanding of the 
nature of the dispute. 

Respondent acknowledged in its conclusion that the decision of 
this tribunal is sustainable when it said in its Petition for Recon- 
sideration that; 

Two theories can explain this sequence of events: the first 
being the conclusion of the Tribunal, which is based on in- 
admissible evidence; the second being the Respondent's, 
which is based on admissible evidence. 

Since the evidence relied on was admissible, we find no reason to 
change our decision because there was insufficient evidence. 

Kespondents claim that it cannot be held liable because Corry 
Brokerage was not its agent lacks merit. As shown by its broker's 
memorandums, the facts show clearly that Corry Brokerage acted 
on its understanding that it had been given authority by respond- 
ent to negotiate purchases on its behalf. The function of a broker is 
o negotiate a purchase and sale for both parties. To this extent it 
s usually not considered to be the agent for only one party. In this 

o J I' W6 ^ t0 ^ lk t0 be the agent for one P* as opposed 
to the other, the evidence of record would lead us to conclude it 



MISCELLANEOUS 
Volume 44, Number 3 



acted as respondent's agent since respondent had previously en- 
tered an arrangement with City Wide Distributors of Arkansas, 
Inc. under which Corry Brokerage had been given authority to 
make purchases on its behalf, which authority was not shown to 
have been rescinded prior to the date of the transactions. See Ja- 
cobsen Produce, Inc. v. R. L. Burnett Brokerage Company, a/t/a 
Best Potato Products Company, 37 Agric. Dec. 1743 (1978). The prior 
activities of respondent obviously placed apparent authority in 
Corry Brokerage to act on its behalf. As stated in George Arakelian 
^arms. Inc. v. Leonard O'Day Company, 31 Agric. Dec. 1395, 1401 
U972), "By placing Kirchberg in a position of having apparent au- 
thority to act for him, O'Day thus became liable to complainant 
notwithstanding his lack of actual authority. In situations such aa 
uiw where a principal by any act or conduct knowingly causes or 
permits another to appear as his agent, either generally or for a 
particular purpose, he will be estopped to deny such agency " 

th!? V16 ^ /l he ab Ve ' the on] y other P int raised by respondent 
cen e n * * whettwr "******* wa/sub^ct to U- 



r - worth of 



dur to h ** ^ n0t SUbJ6Cfc tO license as a 

tionalbt?T S r ^ However ' " toorea the other jurisdic- 






TOGNAZZINI SUPPLY, INC. v CITY Wmn nr.^ 

Docket No 9 fuiq ^ j T E DisTiimuTona, INC., PACA 
JJOOKCI; INO. ^-b4iy. Decided June 27, 1985. 

. Campbell, Judicial Officer, 
OUDER ON RKCONSIDRRATION 



in 



$2,106.80', plus inttFeblnf'!^ '" the , am Unt f 

wii iLDiuaiy Ib, 1985, respondent filed a 



1394 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

petition for reconsideration, as a result of which the Order was 
stayed pending reconsideration. 

The major thrust of respondent's petition for reconsideration was 
that the decision was based on inadmissible evidence. Respondent 
predicated its argument in this regard on its belief that unsworn 
evidence cannot be considered as evidentiary. However, in a pro- 
ceeding of this nature certain unsworn evidence may be treated as 
evidentiary. Pursuant to 7 CFR 47.7: 

Where the facts and circumstances are deemed by the Di- 
rector to warrant such action, the Division shall serve 
upon each of the parties a copy of the report made by the 
Division in connection with its investigation of the infor- 
mal or formal complaint. Whenever the Secretary, or the 
Director, or the examiner deems it necessary, a supple- 
mental investigation shall be made by the Division and a 
copy of the report thereon shall be served upon the par- 
ties. If an answer is filed by respondent, a copy of any 
report or reports of investigation served upon the pa?*ties 
shall be filed with the hearing clerk and shall be consid- 
ered as part of the evidence in the proceeding: Provided, 
That either party shall be permitted to submit evidence in 
rebuttal in the same manner as is provided in the regula- 
tions in this part for the submission of other evidence in 
the proceeding, (emphasis added). 

The above-quoted provision makes it clear that properly served 
reports of investigation are evidentiary in nature. In proceedings of 
this kind, where there is no opportunity for cross-examination of 
witnesses, it is often necessary that the presiding officer have avail- 
able more evidence than the parties usually provide so as to assure 
that his decision is proper. The investigative report, including the 
attachments thereto, frequently provides the information necessary 
to reach a fair resolution of the dispute. Such is the case in this 
proceeding in which the evidence furnished by the parties was in- 
conclusive and incomplete. The investigative report contained 
statements by Arthur M. Zurhorst of Corry Brokerage, and other 
information, which was essential to a full understanding of the 
nature of the dispute. 

Respondent acknowledged in its conclusion that the decision of 
this tribunal is sustainable when it said in its Petition for Recon- 
sideration that: 

Two theories can explain this sequence of events: the first 
being the conclusion of the Tribunal, which is based on in- - 



MISCELLANEOUS 
Volume 44, Number 3 



admissible evidence; the second being the Respondent's 
which is based on admissible evidence. ' 

Since the evidence relied on was admissible, we find no reason to 
cnange our decision because there was insufficient evidence 

Respondent's claim that it cannot be held liable because Corrv 
Brokerage was not its agent lacks merit. As shown by its brok^ 
memorandums, the facts show clearly that Corry Brokerage L 
on its understanding that it had been given autLl^^^ 
ent to negotiate purchases on its behalf. The function of a broW t 
to negotiate a purchase and sale for both parties. To this extln t 
w usually not considered to be the agent for only one oa tv Tn I 



H 

Farms, Inc. v Leonid Z^n"* A * Stated in ^orge Arakelian 
(1972), "By placinxK^ * mPany ' 31 A ^ ric ' De <=- 1395, 1401 
thority to y actfo n r g ht o'DaV?hu PO h Biti0n ^ ha " ng ^'^ "- 
notwithstanding his ; O f t y ct *r au H? a T r aWe t0 "Mfcant 
this where a principal by anv I/ UU T lty ' In situ ations such as 
permits another to appear as h ls aln7 ' knowln 8 1 y "" or 
particular purpose, he will be e topped I f ** 8 f 6MUy or for a 

In view of the above, the onlv S '7 3U h agenc y" 
that needs to be addressed is ; wh e t ^ r ,. p P Ult laed ^ respondent 
cense. Respondent denies thattt nm.^ 130 ^^' Waa 8ub J eot to H- 
produce in 1983. Thus, it c afms it 71 ? d $ 1 230 ' 000 '<> rth of 
retailer during that year. Howevl ? f ^^ ' license as 
tional basis for licensing, i "that tv,' h lg " 01 ' eS th other J uriadi '- 
at least 2,000 pounds of proiu^ * *" ^ST* 0f M Uying r sellin S 
cense as a dealer. See 7 USC sloo ^ ^ 7 Uld aub J ect ;t ' "- 
spondent does not claim that it W L1 vf ' a "V, CFR 4 6.2(x). Re- 

All other issues raised bv , S lely a re tuiler. 
in the original Decision and Order' WCU ' e ade( i uatel y addressed 

In view of the above we fmH n,Lf <i , 

and Order is supported by the ovUe^m^.T' 3 ' 22 ' 198R Dedsion 
cordingly, the petition for ~UW^ h , n '" >licaW '. Ac- 

leconsuleraUon ,a dismissed. The Order 



1396 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

of January 22, 1985 is reinstated, except that the reparation award- 
ed shall be paid within 30 days from the date of this Order. 



APPLE SALES, INC. v. CITY WIDE DISTRIBUTORS, INC., PACA Docket 
No. 2-6423. Decided June 27, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER ON RECONSIDERATION 

A Decision and Order was issued in this proceeding on January 
31, 1985, awarding reparation to complainant in the amount of 
$3,475,00, plus interest. On February 19, 1986, respondent filed a 
petition for reconsideration, as a result of which the Order was 
stayed pending reconsideration. 

The major thrust of respondent's petition for reconsideration was 
that the decision was based on inadmissible evidence. Respondent 
predicated its argument in this regard on its belief that unsworn 
evidence cannot be considered as evidentiary. However, in a pro- 
ceeding of this nature certain unsworn evidence may be treated as 
evidentiary. Pursuant to 7 CFR 47.7: 

Where the facts and circumstances are deemed by the Di- 
rector to warrant such action, the Division shall serve 
upon each of the parties a copy of the report made by the 
Division in connection with its investigation of the infor- 
mal or formal complaint. Whenever the Secretary, or the 
Director, or the examiner deems it necessary, a supple- 



MISCELLANEOUS 
Volume 44, Number 3 



attachments thereto frequently provides the information necessarv 
to reach a fair resolution of the dispute. Such is the case in thh 
proceeding in which the evidence furnished by the par ies wa/ 

t^^^r^Sfwtn VS^ ^ ^ dedsi " f 



Two theories can explain this sequence of events- the first 
bemg the conclusion of the Tribunal, which is based on n 

Stt^ - R " 






to the other, the evSence of rectd "' , 01 ,' T PaHy M Pposed 
acted as respondent's lenfl? "'^ ' ead US to conclude !t 

tered an arrangem L t S Sh ^ WW P ^?V had Pr6Vi Usly e "- 
Ino. under which a 1 ^ ^5^, Distributors of Arkansas, 

make purchases on its behal Zch L ^ ^ authoriiy to 
have been rescinded prior to thld.t otK^ S " Ot Sh Wn to 



this where n AH*., hy'in^et 



s 

perm.ts another to npponr ,u, hi B ngont, either (jeneSy or for a 
particular purpose, he will bo estopped to deny such agency" 

In view of the abovo, Lbo only other point raised by respondent 
that needs to be uddnaHod - a whother teisfmdmi ma y su ^~_ 



1398 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

cense. Respondent denies that it purchased $230,000.00 worth of 
produce in 1983. Thus, it claims it was not subject to license as a 
retailer during that year. However, it ignores the other jurisdic- 
tional basis for licensing, i.e. that the business of buying or selling 
at least 2,000 pounds of produce in any day would subject it to li- 
cense as a dealer. See 7 U.S.C. 499a(6) and 7 CFR 46.2(x). Re- 
spondent does not claim that it was solely a retailer. 

All other issues raised by respondent were adequately addressed 
in the original Decision and Order. 

In view of the above we find that the January 81, 1985 Decision 
and Order is supported by the evidence and the applicable law. Ac- 
cordingly, the petition for reconsideration is dismissed. The Order 
of January 31, 1985 is reinstated, except that the reparation award- 
ed shall be paid within 30 days from the date of this Order. 



ABATTI PRODUCE, INC. v. C. H. ROBINSON COMPANY, PACA Docket 
No. 2-6457. Decided June 27, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER ON RECONSIDERATION 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.\ an 
order was issued on October 5, 1984, awarding reparation to com- 
plainant against respondent. On October 22, 1984, respondent filed 
a petition for rehearing and reconsideration. On November 19, 
1984, the order of October 5, 1984, was stayed and the complainant 
was given opportunity to file an answer to the petition for reconsid- 
eration. Such answer was filed on December 10, 1984. 

In our order of October 5, 1984, we awarded reparation against 
respondent in the amount of $4,111.60 in connection with the sale 
to respondent of three partial truckloads of lettuce in December of 
1982, As pointed out in that order, respondent's only defense to 
complainant's action related to entirely separate transactions in- 
volving eight truckloads of lettuce sold by complainant to Cousins 
Produce, of Houston, Texas, through respondent acting as broker, 
in February and March of 1982. Respondent's contentions as to 
these transactions were described in our order of October 5, 1984, 
as follows: 

Respondent states that it advanced $5,555.45 to complain- 
ant in March of 1982, while respondent undertook to col- 
lect such, amount from Cousins. Cousins subsequently went 



MISCELLANEOUS J308 

Volume 44, Number it 

out of business, and respondent was unable to collect any 
of the amount due and owing from Cousins. Meanwhile 
complainant brought a PACA action against Cousins for 
the amounts due on the eight truckloads of lettuce and 
subsequently settled such action on the basis of a 30% pay- 
ment by Cousins to complainant on November 17, 1982 On 
November 27, 1982, respondent alleges that ' it made 
demand on complainant for the $5,556.45 which it ad- 
vanced complainant pending collection from Cousins On 
January 11, 1983, respondent notified complainant that it 
would deduct $5,555.45 from amounts due complainant 
from respondent on other transactions, since complainant 
had failed to respond to respondent's November 27 1982 
demand. ' ' 



" u m ' Pri01 ' rdel '' res P n dent's first request to com- 

Ju a 2 1 82r bm ! em f V the 6ight trUCkl ads s "*> 
June 4 1982. Respondent's first complaint to the Department con 



set-off and counterclaim. 
In its petition for rehearing and reconsideration respondent ad 
vances a new theory under which it claims that th sTepartment 
has jumdiction over the matters raised in the set-off " 



the p eauiKB o tis CUHO HhowH that respondent's answer does 
s notly HpoakmR contain an allegation that respondent paid co 
plamant or tho throo partial truckloadn of lettuce shipped In D 
comber of 1!>H2 Hathor th..re won an allegation that respondent ad- 
vanced comphunant $5,555.45 in connection with eight loads of let- 
tuoo Bold by complumunt b, CouHinn Produce in March and April of 
im, under an K romcnt whereby Complainant would reimburse 
reflpondent for any amounts not collected." Respondent further al- 
leged in tho attached HoK.iT and counterclaim that demand was 
made on complnmiml for roimhurflcmont of the amounts advanced 
Tho record rovoaln that Hiich demand was made on June 2 1982' 
and again on November 27, lima. Hespondont further states that aa 
a result of nuoh ImnHnutionH. advance, and demand "there was 



1400 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

then due and owing respondent from complainant, the sum of 
$5,555.45, no part of which had been paid", and as a consequence 
there was a violation of the Act. Complainant in its reply to the 
set-off and counterclaim denied all these allegations by respondent. 
Respondent further alleged in its set-off and counterclaim that it 
applied the $4,111.60, due on the three December transactions 
which were the subject of the complainant, to the $5,555.45 alleged- 
ly owed to respondent. 

The obvious problem with respondent's new theory is that re- 
spondent is still seeking to have us adjudicate factual and legal 
matters relating to transactions as to which respondent itself al- 
leges that there were violations of the Act in June of 1982, which is 
more than nine months prior to the filing of any complaint by re- 
spondent relative to such alleged violations. It is impossible for us 
to make a deter miniation that respondent effectuated payment in 
December of 1982, by "requesting that monies owed it" (and still in 
complainant's hands) be applied by complainant to the December 
purchases, without adjudicating whether such monies were in fact 
owed to respondent by complainant, as a result of the alleged June 
2, 1982, violations of the Act. 

We have reconsidered our prior order, and find that respondent's 
contentions relative thereto are without merit. Such order is sup- 
ported by the evidence and the law applicable thereto. Accordingly, 
respondent's petition should be and hereby is dismissed. The Stay 
of November 19, 1984, is vacated, and the order of October 5, 1984, 
is hereby reinstated. The reparation awarded to complainant in 
that order shall be paid within thirty days from the date of this 
order. 



JOE PHILLIPS, INC. v, CITY WIDE DISTRIBUTORS, INC., PACA Docket 
No. 2-6485. Decided June 27, 1985. 

Decision by Donald A. Campbell, Judicial Officer, 
ORDER ON RECONSIDERATION 

A Decision and Order was issued in this proceeding on January 
28, 1985, awarding reparation to complainant in the amount of 
$11,874.75, plus interest. On February 19, 1985, respondent filed a 
petition for reconsideration, as a result of which the Order was 
stayed pending reconsideration. 

The major thrust of respondent's petition for reconsideration was 
that the decision was based on inadmissible evidence. Respondent 



MISCELLANEOUS 
VoJunie 44, Number 3 



predicated its argument in this regard on its belief that unsworn 
evidence cannot be considered as evidentiary. However, in a pro- 
ceeding of this nature certain unsworn evidence may be'treafpr) 
evidentiary. Pursuant to 7 CFR 47.7: 

Where the facts and circumstances are deemed by the Di 
rector to warrant such action, the Division shall serve 
upon each of the parties a copy of the report made by the 
Division in connection with its investigation of the infor 
mal or formal complaint. Whenever the Secretary or rh P 
Director, or the examiner deems it necessary, a sUDule 
mental investigation shall be made by the Division and a 
copy of the report thereon shall be served upon the nar 
ties. If an anawer is fi]ed by respondent ar 

served 



es 
the hearing clerk and shall be consid 

f the midence in the 



is provided 

" 



y served re- 

this kind, where there is '" dentla f y In natur e. In proceedings of 
witnesses, it i s O ft ^ c ^v Th^T l^ f . c ^^a m ination o 
able more evidence than ?he L rt t *" ^f ' ding officer h ve avail- 
that his decision is proper ThJ' T^ P Vide S as to aas ''e 
attachments thereto; frequent] vn^^ 6 rep rt ' wading the 
to reach a fair resoiutfon of he'dTs^^ ^ ln / a "-efsary 
proceeding in which the evidence fZ^ ^ ^ the Caae in thi 
concluswe and incomplete The m "^ ' , y the Parties was in ' 
statements by Arthur M. Zurho^t of r S T , rep rt Containe d 
mformation, which was essenUalto a falf Br kera S e ' a d other 
nature of the dispute. lul1 understanding of the 

Respondent acknowledged in ;t<, i . 

this tribunal is sustainable whe^ ^ it T^*. ^ the dedsio ^ 
sideration that: n lt amd ln its Petition for Recon- 



Two theories can , , 

being the conclusiothTrib e rr C ^r^ the 
admissible evidence; the , wcnnH f 1 ! Wh ' Ch is baaed ln 
which is based on admissible evlnte"" " 

Since the evidence relied on w Q 

change our decision because thJrl 



1402 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent's claim that it cannot be held liable because Cony 
Brokerage was not its agent lacks merit. As shown by its broker's 
memorandums, the facts show clearly that Corry Brokerage acted 
on its understanding that it had been given authority by respond- 
ent to negotiate purchases on its behalf. The function of a broker te 
to negotiate a purchase and sale for both parties. To this extent it 
is usually not considered to be the agent for only one party, In this 
case, if we were to find it to be the agent for one party as opposed 
to the other, the evidence of record would lead us to conclude it 
acted as respondent's agent since respondent had previously en- 
tered an arrangement with City Wide Distributors of Arkansas, 
Inc. under which Corry Brokerage had been given authority to 
make purchases on its behalf, which authority was not shown to 
have been rescinded prior to the date of the transactions. See Ja~ 
cobsen Produce, Inc. v. R. L. Burnett Brokerage Company, a/t/a 
Best Potato Products Company, 37 Agric. Dec. 1743 (1978). The prior 
activities of respondent obviously placed apparent authority in 
Corry Brokerage to act on its behalf. As stated in George Arakclian 
Farms, Inc. v. Leonard O'Day Company, 31 Agric. Dec. 1395, 1401 
(1972), "By placing Kirchberg in a position of having apparent au- 
thority to act for him, O'Day thus became liable to complainant 
notwithstanding his lack of actual authority. In situations such as 
this where a principal by any act or conduct knowingly causes or 
permits another to appear as his agent, either generally or for a 
particular purpose, he will be estopped to deny such agency." 

In view of the above, the only other point raised by respondent 
that needs to be addressed is whether respondent was subject to li- 
cense. Respondent denies that it purchased $230,000.00 worth of 
produce in 1983. Thus, it claims it was not subject to license n a 
retailer during that year. However, it ignores the other jurindic- 
tional basis for licensing, i.e. that the business of buying or Boiling 
at least 2,000 pounds of produce in any day would subject it to li- 
cense as a dealer. See 7 U.S.C. 499a(6) and 7 CFR 46.2(x). Re- 
spondent does not claim that it was solely a retailer. 

All other issues raised by respondent were adequately addressed 
in the original Decision and Order. 

In view of the above we find that the January 23, 1985 Decision 
and Order is supported by the evidence and the applicable law. Ac- 
cordingly, the petition for reconsideration is dismissed. The Order 
of January 23, 1985 is reinstated, except that the reparation award- 
ed shall be paid within 30 days from the date of this Order. 



REPARATION DEFAULT DECISIONS 1403 

Volume 44, Number 3 

REPARATION DEFAULT DECISIONS ISSUED BY 
DONALD A. CAMPBELL, JUDICIAL OFFICER 

WM. S. WRIGHT INC. v. JERRY G. LOWE d/b/a LOWE FRUIT & 
PRODUCE. PACA Docket No. RD-85-46. Decided May 1, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$8,203.50, plus 13 percent interest per annum from March 1, 1984, 
until paid. 



MIKAMI BROS, a/t/a MIKAMI BROTHERS POTATOES u. SOUTHWEST 
PRODUCE INC. PACA Docket No. RD-85-218. Decided May 1, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$2,640.00, plus 13 percent interest per annum from March 1, 1984, 
until paid. 



WEST COAST PACKERS INC. v. ISLAND DRINKS INC. PACA Docket No. 
RD-85-219. Decided May 1, 1985. 

Respondent was ordered to pay complainant as reparation, 
$7,295.94, plus 13 percent interest per annum from June 1, 1984, 
until paid. 



ANTHONY PODESTA INC. u. FOPPIANO PACKING COMPANY INC. a/t/a 
JMB PACKING Co. PACA Docket No. RD-85-220. Decided May 1 
1985. 

Respondent was ordered to pay complainant, as reparation, 
$5,449.91, plus 13 percent interest per annum from November 1, 
1983, until paid. 



BATISTA J. MADONIA d/b/a EAST COAST BROKERS & PACKERS v. 
WALTER GAILEY & SONS INC. PACA Docket No. RD-85-221. Decided 
May 1, 1985. 



1404 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent was ordered to pay complainant, as reparation, 
$11,247.70, plus 13 percent interest per annum from July 1, 1984, 
until paid. 



STANDARD FRUIT & VEGETABLE Co. INC. v. LINDSEY A. ROLLAND, JR. 
d/b/a BUD'S PRODUCE. PACA Docket No. RD-85-222. Decided May 
2, 1985, 

Respondent was ordered to pay complainant, as reparation, 
$4,920.75, plus 13 percent interest per annum from November 1, 
1984, until paid. 



MARVIN A. SCHWARZ d/b/a MARVIN SCHWARZ PRODUCE v. O'CON- 
NOR CITRUS PACKING INC. PACA Docket No. RD-85-223. Decided 
May 2, 1985, 

Respondent was ordered to pay complainant, as reparation, 
$13,812,75, plus 13 percent interest per annum from January 1, 
1984, until paid. 



WORLEY AND McCuLLOUGH INC. V, FERNANDO's INC. PACA Docket 

No. RD-85-224. Decided May 2, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$2,950.00, plus 13 percent interest per annum from April 1, 1984, 
until paid. 



SOUTHWESTERN NORTH CAROLINA FARMERS COOPERATIVE INC. v. 
GRADY BENNETT, PACA Docket No. RD-95-225. Decided May 2, 
1985. 

Respondent was ordered to pay complainant as reparation, 
$1,000.00, plus 13 percent interest per annum from November 1, 
1984, until paid. 



STEVCO INC. v. NORMAND L. GATINEAU d/b/a GATINEAU ENTER- 
PRISES. PACA Docket No. RD-86-226. Decided May 2, 1984. 



REPAEATION DEFAULT DECISIONS MOO 

Volume 44, Number 3 



Respondent was ordered to pay complainant, as reparation, 
$1,725.83, plus 13 percent interest per annum from March 1, 1984, 
until paid. 



GOLDEN EAGLE PRODUCE v. WILLIAM H. CARSON d/b/a 

SALES AGENCY. PACA Docket No. RD-85-227. Decided May 2, 1986. 

Respondent was ordered to pay complainant, as reparation, 
$3,518.75, plus 13 percent interest per annum from December 1, 
1983, until paid. 



GARLIC DISTRIBUTORS INC. v. BEST PRODUCE Co. INC. a/t/a NEW AIR- 
LINES PRODUCE Co. PACA Docket No. RD-85-228. Decided May 8, 



, "To rdered to pay ct Plainant, as reparation, 
until aid PerCent interest per annum from Ma y L 1984, 



, " JALI PRODUCE Co - lNa PACA 

Decided May 8, 1985. 



Pay com P Iai ^t. reparation, 
until paid t P6r annum from Au ^Bt 1, 1984, 



REYNOLDS PACKING COMPANY a/t/a M & R COMPANY v. FRANK 
May 8" 198 ^ ?ACA D cket N ' R D-8S-230. Decfded 





. - reparation, 

until paid " 6St P6r amum from June L 



JUNGLE KING INC. a/t/a JUNGLE Kmo DISTRIBUTORS u B & E 
PRODUCE INC. PACA Docket No. RD-85-231. Decided May 8 19ga 



1406 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent was ordered to pay complainant, as reparation, 
$2,800.00, plus 13 percent interest per annum from July 1, 1984, 
until paid. 



WM. S. WRIGHT INC. v. FAIR CHESTER TOMATO PACKERS INC. PACA 
Docket No. RD-85-232. Decided May 8, 1985. 

Respondent was ordered to pay complainant as reparation, 
$6,912.00, plus 13 percent interest per annum from June 1, 1984, 
until paid. 



SANTO TOMAS PRODUCE ASSOCIATION v. ERNEST G. ANDERSON d/b/a 
ANDY'S PRODUCE Co. PACA Docket No. RD-85-233. Decided May 9, 

1985. 

Respondent was ordered to pay complainant, as reparation, 
$987.50, plus 13 percent interest per annum from June 1, 1984, 
until paid. 



FAULKNER & BALLESTEROS PRODUCE Co. INC. v. CORGAN & SON INC. 
PACA Docket No. RD-85-234. Decided May 9, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$6,364.50, plus 13 percent interest per annum from August 1, 1984, 
until paid. 



BRUCE CHURCH INC. v. CORGAN & SON INC. PAGA Docket No. RD- 
85-235. Decided May 9, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$21,218.28, plus 13 percent interest per annum from September I, 
1984, until paid. 



PLAINFIELD FRUIT & PRODUCE Co. INC. v. JOSEPH ABDALLA d/b/a 
CRIS-MAR PRODUCE. PACA Docket No. RD-85-236. Decided May 9, 
1985., , J 



REPARATION DEFAULT DECISIONS 
Volume 44, Number 3 



1407 



Respondent was ordered to pay complainant, as reparation, 
$5,865.75, plus 13 percent interest per annum from September 1, 
1984, until paid. 



OKRAY PRODUCE COMPANY v. THOMAS J. BOWMAN INC. PACA 
Docket No. RD-85-237. Decided May 9, 1986. 

Respondent was ordered to pay complainant, as reparation 
$3,696.00, plus 13 percent interest per annum from October 1, 1984, 
until paid. 



PHILADELPHIA PRODUCE CREDIT & COLLECTION BUREAU v. JOSEPH J. 

Rn R^QQ n J CR J IS " MAR F OD DISTRIBUTORS. PACA Docket No. 
njJ-5-^d8. Decided May 10, 1985. 



until pad 




^ l 



Pay 



as reparation, 
fr m Se Pte"ber 1, 



C MPANY " 



Pay 



annum 



d/b/a C RIS - 
' RD-86-289. Decidfd 



as reparation, 
September l| 



Co - INC - PACA 

Respondent was ordered to pay 



ANDRUS & ROBERTS PRODUCE Co. v. JOE N. 
Decided May 10, 



1408 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent was ordered to pay complainant as reparation, 
$4,200.00, plus 13 percent interest per annum from August 1, 1984, 
until paid. 



FOUR STAR PRODUCTS v. RONNIE ADAMS d/b/a C & R PRODUCE Co. 
PACA Docket No. RD-85-242. Decided May 10, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$2,403.00, plus 13 percent interest per annum from April 1, 1984, 
until paid. 



CALIFORNIA SWEET POTATO GROWERS v. BENCHMARK BROKERAGE 
INC. PACA Docket No. RD-85-243. Decided May 13, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$48,862.00, plus 13 percent interest per annum from July 1, 1984, 
until paid. 



STATE WIDE SALES Co. INC. v, BENCHMARK BROKERAGE, INC. PACA 
Docket No. RD-85-244. Decided May 13, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$17,598.20, plus 13 percent interest per annum from April 1, 1984, 
until paid. 



ROBLING & CATHEY INC. v. BENCHMARK BROKERAGE INC. PACA 
Docket No. RD-85-245. Decided May 13, 1985. 

Respondent was ordered to pay complainant as reparation, 
$160,115.10, plus 13 percent interest per annum from October 1, 
1984, until paid. 



UMTAILLA POTATO INC. v. BENCHMARK BROKERAGE INC. PACA 
Docket No. RD-85-246. Decided May 13, 1985. 



REPARATION DWAUJ/I' DECISIONS , lloy 

Voluino <M, Number. ') 



Respondent was ordered to pav comiiJninnnf 

plU8 13 percent i " 



SUNFRESH, INC. V. LAKE ClTY WHOLESALE FOOIJ & PRODUCF 

LAKE CITY PRODUCE. PACA Docket No RD-KK 9^7 
13,1985. ' ^' < 

* e !?? n f ent _ was . ordered ^ Pay complainant, D 

^er annum 



Respondent was ordered 

-, d 



Respondent was ordered 



1410 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent was ordered to pay complainant, as reparation, 
$21,906.75, plus 13 percent interest per annum from October 1, 
1984, until paid. 



PACIFIC FARM COMPANY u. RICHARD V. PREITAS d/b/s TEXAS 
PRODUCE. PACA Docket No. RD-86-251. Decided May 28, 1985. 



ion W3S ordered to P a y complainant, as reparation, 

$14,809.14, plus 13 percent interest per annum from September 1, 
1984, until paid. 



NICK BOZANICH, JR. v . MURRAY-LEONG COMPANY INC. PACA Docket 
No. RD-85-252. Decided May 28, 1985. 



rn rdered t0 pay ^Piainant, as reparation, 

$7,815.00, plus 13 percent interest per annum from February 1, 
1984, until paid. 



O & E GROWERS INC. v. GREENPOINT PRODUCE Co. INC. PACA 
Docket No. RD-86-253. Decided May 28, 1985. 



n , rdered to pay com Pl*inant, as reparation, 
' P 13 percent interest per annum from December 1, 
1984, until paid. 



PBU ENTERPRISES a/t/a QUALITY DISTRIBUTING OF CALIFORNIA v 
ANGEL W. DEMEROUTIS d/b/a PROXORA DISTRIBUTING Co. PACA 
Docket No. RD-86-254. Decided May 30, 1985, 

Respondent was ordered to pay complainant, as reparation 
$13,051.10, plus 13 percent interest per annum from March 1, 1984* 
until paid. * -^a*. 



pAn A n T ASSOCIATION Bo* E. BARKER 

. PACA Docket No, RD-85-255. Decided May 30, 1985. 



RKJ'AKATION DKKAULT DIVISIONS ,,,, 

Volume -K Number ;t 



Bespondent was ordered to pay complainant, us 

Gr annura 



ZELLWIN- FARMS COMPANY u JOSEPH PIOI.DMAN INC PAPA n 3 , 
No. RD-S5-266. Decided May 80, 1935. Docket 



Pay nn, as r 



AMIGO PRODUCE Co IMP ? IWTABT* TT> 

Eoos & P RODUCE . PACA Doc^t N: RD 825^ D;A S J UA ' )AS 
1985. ^ ^o7. Decided May 30, 

Respondent was 



. RD - 86 _ 



ere 

until paid. e ' es per annum f m July 1. 1984, 



TRAUTMANN 
Docket No. 



until paid. Cies per annum from June 1, 1984, 



1412 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent was ordered to pay complainant, as reparation, 
$6,608.00, plus 13 percent interest per annum from September 1. 

1QQ/1 ,-,~j-:i :j c ' 



1984, until paid. 



PRODUCE SPECIALISTS OP ARIZONA INC. v. ROBERT J. STELLY, SR. d/b/ 
a ROBERT STELLY PRODUCE. PACA Docket No. RD-85-261, Decided 
June 5, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$405.00, plus 13 percent interest per annum from May 1, 1984, 
until paid. 



CHAMBERLIN & BARCLAY, INC. v, TAYLOR-BYERS INC. PACA Docket 
No. RD-85-262. Decided June 5, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$3,017.60, plus 13 percent interest per annum from November 1. 
1984, until paid. 



J-B DISTRIBUTING Co. v. ERNEST G. ANDERSON d/b/a ANDY'S 
PRODUCE Co. PACA Docket No. RD-85-263. Decided June 5, 1985. 
Respondent was ordered to pay complainant, as reparation, 
$4,764.48, plus 13 percent interest per annum from September 1. 
1984, until paid. 



T. APKARIAN & SONS v. JOE N. Russo and STANLEY Russo d/b/a 
STANLEY & JOE Russo. PACA Docket No. RD-85-264. Decided June 
7, 1985, 



n.n, rdered to pay com Plainant, as reparation, 
$50,564.50, plus 13 percent interest per annum from September 1, 
1984, until paid. 



GRANADA MARKETING INC. a/t/a RICHARD A. GLASS Co. v. WESTERN 
PRODUCE COMPANY. PACA Docket No. RD-85-265. Decided June 7, 

-L7oO. 



REPARATION DEFAULT DECISIONS 
Volume 44, Number 3 



|,j |. 



Respondent was ordered to pay complainant, t\a reparation 
$6,048.00, plus 13 percent interest per annum from May 1, ]<)&<]' 
until paid. 



R & C MCENTIRE, JR. d/b/a R. C. MCENTIRE & Co. v. MIKE HODOFS 
d/b/a MIKE'S FRUITLAND. PACA Docket No. RD-8G-260. Decided 

| Wa f g rdered to PW complainant, as reparation, 

o .. P . S P ercent interest per annum from January 1 

1984, until paid. J x ' 



Respondent 

^781.60, 
until paid. 



P er 



as reparation, 
from July 1, 1 98 4, 



GARRBN-TEED P RO Co 
Docket No. RD-85-269. 
Respondent was orderpH 

percent i 



KOBERT W, ARTD /Ky,, n 

/ /b u s : A & FR T EXCHANGE - 

Docket No. RD-85-270. Decided June w'" J * RUSS ' PACA 



1414 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent was ordered to pay complainant, as reparation, 
$12,692.00, plus 13 percent interest per annum from September 1, 
1984, until paid. 



MCRAE PRODUCE Co. INC. v. PETE GUINTA d/b/a TOP OP THE HILL 
PRODUCE. PACA Docket No. RD-86-271. Decided June 10, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$15,904.50, plus 13 percent interest per annum from September 1, 
1984, until paid. 



A & D CHRISTOPHER RANCH v. PRANK MARCHESOTTO COMPANY INC. 
PACA Docket No. RD-85-272. Decided June 10, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$8,717.50, plus 13 percent interest per annum from October 1, 1984, 
until paid. 



SALINAS MARKETING COOPERATIVE v. DANNY G. SCURRY d/b/a RA- 
LEIGH BROKERAGE & DISTRIBUTING Co. PACA Docket No. RD-85- 
273. Decided June 10, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$14,787.00, plus 13 percent interest per annum from December 1, 
1984, until paid. 



MERRILL FARMS v. DANNY G. SCURRY d/b/a RALEIGH BROKERAGE & 
DISTRIBUTING Co. PACA Docket No. RD-85-274. Decided June 12, 
1984. 

Respondent was ordered to pay complainant, as reparation, 
$9,126.00, plus 13 percent interest per annum from November 1, 
1984, until paid. 



SANTA CLARA PRODUCE INC. v. ROY E. BARKER PRODUCE INC. PACA 
Docket No. RD-85-275. Decided June 12, 1985. 



REPARATION DEFAULT DECISIONS 
Volume 44, Number 3 



Respondent was ordered to pay complainant, as reparation, 
$1,147.20, plus 13 percent interest per annum from September 1, 
1984, until paid. 



J-B MARKETING INC. v. ERNEST G. ANDERSON d/b/a ANDY'S 
PRODUCE Co. PACA Docket No. RD-85-276. Decided June 12, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$1,497.61, plus ISpercent interest per annum from January 1, 1986* 
until paid. * ' 



PACIFIC GAMBLE ROBINSON Co. a/t/a PACIFIC FKUIT AND PRODUCE 
ed JuneT2 NL 1985 ' ^^ ***"* N " 



*? PEy com P Iaina ^ reparation, 

' per annura from September i - 



PACA 



Respondent was 

SE2 



SONS - PACA 



1416 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent was ordered to pay complainant, as reparation, 
$10,792.27, plus 13 percent interest per annum from September 1, 
1984, until paid. 



NEBRASKA POTATO SHIPPERS INC. v. BEN CONTRERAS PRODUCE. 
PACA Docket No. RD-85-281. Decided June 19, 1985, 

Respondent was ordered to pay complainant, as reparation, 
$5,287.50, plus 13 percent interest per annum from December L 
1983, until paid. 



J. MAHERAS Co. INC. v. CARON FRUIT Co. INC. PACA Docket No. 
RD-85-282. Decided June 19, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$4,749.50, plus 13 percent interest per annum from October 1, 1984, 
until paid. 



PEMBERTON PRODUCE INC. v, DANNY G. SCURRY d/b/a RALEIGH BRO- 
KERAGE & DISTRIBUTING Co. PACA Docket No. RD-85-283. Decided 
June 19, 1984. 

Respondent was ordered to pay complainant, as reparation, 
$14,764.10, plus 13 percent interest per annum from September 1. 
1984, until paid. 



>ES INC. v. D. PAVA INC. PACA Docket No. RD-85-284. De- 
ime 19, 1985. 

dent was ordered to pay complainant, as reparation, 
,75, plus 13 percent interest per annum from July 1, 1984, 
lid, 



INTERPRISES v. ROBERT STELLY PRODUCE. PACA Docket No 
285. Decided June 20, 1985. 



REPARATION DEFAULT DECISIONS 
Volume 44, Number 3 



HI 7 



Respondent was ordered to pay complainant, as reparation, 
3l.475.50> plus 13 percent interest per annum from May 1, 1984 
until paid. 



, 

^ l 



Pay 



SALES INC - PACA Docket 



as reparation, 
March * ' 



1985, until paid. 



PACA 



from October 1, 



until paid. 



- Cation, 
per annui " from July i, 1984 ; 



GINO PINTO v. STANIPV * 
289. Decided June 20, 198? 
Respondent 



1984, until paid. 



TJ 

USS ' PA A D cket No ' RD-85- 



as reparation, 
from November 1, 



d 

Decided June 20, 1985. 



1418 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent was ordered to pay complainant, as reparation, 
$6,202.80, plus 13 percent interest per annum from July 1, 1984, 
until paid. 



ROGER HARLOFF PACKING INC. v. JACK W. MCNEIL d/b/a MCNEIL'S 
TOMATOES. PACA Docket No. RD-85-291. PACA Docket No. RD- 
85-283. Decided June 20, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$14,937.10, plus 13 percent interest per annum from July 1, 1984, 
until paid. 



CHARLES T, ELAINE d/b/a ANDY'S PRODUCE Co. PACA Docket No. 
RD-85-292. Decided June 21, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$800.00, plus 13 percent interest per annum from April 1, 1984, 
until paid. 



PEMBERTON PRODUCE INC. v. ERNEST G. ANDERSON d/b/a ANDY'S 
PRODUCE Co. PACA Docket No. RD-85-293. Decided June 21, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$1,147.50, plus 13 percent interest per annum from November 1, 
1984, until paid. 



FARM PAK PRODUCTS INC. v. ANDY'S PRODUCE Co. PACA Docket No, 
RD-85-294. Decided June 21, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$580.00, plus 13 percent interest per annum from October 1, 1984, 
until paid. 



H & H PRODUCE SALES INC. v. ERNEST G. ANDERSON d/b/a ANDY'S 
PRODUCE Co. PACA Docket No. RD-85-295. Decided June 21, 1986. 



REPARATION DEFAULT DECISIONS 1/119 

Volume 44, Number 3 



Respondent was ordered to pay complainant, as reparation, 
$2,079.00, plus 13 percent interest per annum from November 1 
1984, until paid. 



DEW-GRO INC. a/t/a CENTRAL WEST PRODUCE v. BEST PRODUCE Co 
"T a/t/a NEW AIRLINES PRODUCE Co. PACA Docket No. RD-85- 
. Decided June 21, 1985, 



until paid 



nn, Pay com P Iai at. as reparation, 

PerCe " mtereSt P6r annUm fr m A gt 1, 1984, 



SON INC ' PACA 



Respondent was orderpH 



r,^-,, 



1 420 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Respondent was ordered to pay complainant, as reparation, 
$4,682.60, plus 13 percent interest per annum from April 1, 1984, 
until paid. 



CASILLAS BROS. INC. v. J. P. DANIEL PRODUCE INC. PACA Docket No. 
RD-85-301. Decided June 24, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$9,610.00, plus 13 percent interest per annum from August 1, 1984, 
until paid. 



J-B MARKETING INC. v. DAVID W. LIGHT and RONNIE L. LIGHT d/b/ 
a LIGHT'S POTATO SUPPLY Co. PACA Docket No. RD-85-302. Decid- 
ed June 24, 1985. 

Respondent was ordered to pay complainant, as reparation, 
$2,687.00, plus 13 percent interest per annum from May 1, 1984, 
until paid. 



MISCELLANEOUS REPARATION DEFAULT DECISIONS 

DEW-GRO INC. a/t/a CENTRAL WEST PRODUCE v, MINGS IMPORT, INC. 
PACA Docket No. Rd-85-152. 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER REOPENING AFTER DEFAULT 

In this proceeding under the Perishable Agricultural Commod- 
ities Act, 1930, as amended (7 U.S.C. 499a et seq.\ the respondent 
failed to file a timely answer. However, prior to the issuance of a 
Default Order, respondent filed a motion to reopen the proceeding 
after default and allow the Filing of an answer pursuant to section 
47.25 of the Rules of Practice (7 CFR 47.25(e)). 

The record has been carefully considered and it is concluded that 
the motion to reopen was filed within a reasonable time, and that 
good reason has been shown why the relief requested in the motion 
should be granted. Mendelson-Zeller Co. v. United Fruit Distribu- 
tors, 16 A.D. 790 (1957). Accordingly, respondent's default in the 
filing of an answer is set aside and the proposed answer submitted 



MISCELLANEOUS 1421 

Volume 44, Number 3 



by respondent is hereby ordered filed and served upon complainant 
along with this order. 



BORDER FRUIT Co., INC. v. FRUIT DISTRIBUTING CORP., PACA Docket 
No. RD-85-193. Decided May 6, 19S5. 

Decision by Donald A. Campbell, Judicial Officer. 

ORDER REOPENING AFTER DEFAULT 

in!" l h l S fLn eeding UndSr the Perishable Agricultural Commod- 
'Lies Act, 19JU, as amended (7 U S C 4ftQ of nor, ~\ +i* n i 

filing nff - Accordingly, respondent^ default in thp 



Decision by Donald A. Campbell, Judicial Officer. 

STAY ORDER 



Order was issued on April 17 198 f i ^ a Default 

complainant in the anTount of $3 m K"?*?***** * t0 the 
11 1981 h.,f Wft * , *rf,l0.00 t By letter received AnHI 

aft the Default 



t1 , 

to file a timely answer, and wahave 10 v f 7^ 
this order to provide a "good reason" whv = T T" " r6Ceipt f 
filed, pursuant to 7 CPR 47 25fe) Y ""^ WaSn>t 



1422 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

This April 17, 1985, Default Order is stayed. Respondent's failure 
to provide its "good reason" within the 10 day period specified in 
this order will result in a reinstatement of the Default Order. 



KENT W. NORTHCROSS d/b/a NORTHCROSS DISTRIBUTING v. GEORGE 
VILLALABOS d/b/a TEKSUN BRAND INTERNATIONAL, PACA 
Docket No. RD-85-189. Decided May 8, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER REOPENING AFTER DEFAULT 

In this proceeding under the Perishable Agricultural Commod- 
ities Act, 1930, as amended (7 U.S.C. 499a et seq.\ the respondent 
failed to file a timely answer. However, prior to the issuance of a 
Default Order, respondent filed a motion to reopen the proceeding 
after default and allow the filing of an answer pursuant to section 
47.25(e) of the Rules of Practice (7 CFR 47.25(e)). 

The record has been carefully considered and it is concluded that 
the motion to reopen was filed within a reasonable time, and that 
good reason has been shown why the relief requested in the motion 
should be granted. Mendelson-Zeller Co. v. United Fruit Distribu- 
tors, 16 Agric. Dec. 790 (1957), Accordingly, respondent's default in 
the filing of an answer is set aside and the proposed answer sub- 
mitted by respondent is hereby ordered filed. 

Copies of this order shall be served upon the parties. A copy of 
respondent's answer shall be served upon complainant. Complain- 
ant has ten days from date of service to file a reply to respondent's 
counterclaim. 



FRESH WESTERN MARKETING, INC. v, CORGAN & SON, INC., PACA 
Docket No. RD-85-198. Decided May 8, 1985. 

Decision by Donald A. Campbell Judicial Officer. 

STAY ORDER 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 et seq.\ a Default 
Order was issued on April 18, 1985, awarding reparation to the 
complainant in the amount of ,$1,216.20. By letter received April 
11, 1985, but not processed until after the Default Order was 
issued, respondent has submitted an answer, The answer cannot be 



MISCELLANEOUS 
Volume 44 t Number 3 



accepted for filing until the default is reopened. Therefore, the De- 
fault Order is stayed and respondent will have 10 days from its re- 
ceipt of this order to submit a good reason why a timely answer 
iTeaf fUed t] See ? CFR * 47 - 26 &* Respondent's failure to submit 
of teTDeteutt Order. " ^ ^^ ^ ^^ ** the "^tatement 



DIXON TOM-A-TOE COMPANIES INP lf 



Decision by Donald A. Campbell, Judicial Officer. 

STAY ORDER 

Co tleT^ 

Order was issued on April T 198 ^ *' ^ * Default 
complainant in the amount of $2 217 fif) T^ re *> ara n to the 
Far Hori 2 on Trading Company Inf has m % / Itf"*" 1 ' res Pdont 
reopened after default. However * f "^ th&t thia matter be 
why it failed to file a tinTelyanswe* ^ P1 ' Vided g od re ^ 
opened under these circZstan ' ^ *" ma " er Cann t be re- 



csan 

Accordingly, the order of April 25 u ,. 

spondent Far Horizon Trading Como' v T 5^ Stayed ' Re 
rece.pt of this order to file a Droc^v ' f " haS ten da y a ^o 
See 7 CFR 47.25(e). P P Petltl " to re P after default. 



MissroN PRODUCE INC. CORGAN x, * , 

RD-85-195. Decided May 13, ms ' ^ PACA Docket No. 
Decision by Dmald 



STAY ORDER 

^ 

Order was issued on April 17 Tqw U ' S - C -. 49& <*(?.), a Default 
.omplainant in the amount of reparation to the 



1424 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

presentation of "good reason" why the answer was not filed in a 
timely fashion. 7 CFR 47.25(e). 

The Default Order is hereby stayed, and respondent will have 10 
days from its receipt of this order to present a good reason why a 
timely answer wasn't filed. Respondent's failure to provide this in- 
formation within the 10 day period will result in the immediate re- 
instatement of the Default Order. 



FOUR STAR TOMATO, INC. v. TOMATOES, INC., PACA Docket No. RD- 
85-149. Decided May 24, 1985. 

Decision by Donald A. Campbell, Judicial Officer, 
ORDER REOPENING AFTER DEFAULT 

In this proceeding under the Perishable Agricultural Commod- 
ities Act, 1930, as amended (7 U.S.C. 499a et seq.\ the respondent 
failed to file a timely answer. However, prior to the issuance of a 
Default Order, respondent filed a motion to reopen the proceeding 
after default and allow the filing of an answer pursuant to section 
47.25 of the Rules of Practice (7 CFR 47.25(e)), 

The record has been carefully considered and it is concluded that 
the motion to reopen was filed within a reasonable time, and that 
good reason has been shown why the relief requested in the motion 
should be granted. Mendelson-Zeller Co. v. United Fruit Distribu- 
tors, 16 A.D. 790 (1957). Accordingly, respondent's default in the 
filing of an answer is set aside and the proposed answer submitted 
by respondent ia hereby ordered filed. 



SMITH POTATO, INC. v. T&J FOODS, PACA Docket No. RD-85-209. 
Decided May 24, 1985, 

Decision by Donald A. Campbell, Judicial Officer. 

STAY ORDER 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 et seq,\ a Default 
Order was issued on April 24, 1985, awarding reparation to the 
complainant in the amount of $3,560.00. By letter received April 
29, 1985, respondent has moved that this matter be reopened after 
default, 



MISCELLANEOUS 1 425 

Volume 44, Number 3 

Accordingly, the order of April 24, 1985 is hereby stayed. Com- 
plainant may have fifteen (15) days from receipt of this order to file 
an answer to the petition to reopen after default. 



ANTHONY PODESTA INC. u. FOPPIANO PACKING COMPANY INC a/t/a 
JMB PACKING Co., PACA Docket No. RD-85-22Q. Decided Mav 
24, 1985. J 

-Decision by Donald A. Campbell, Judicial Officer. 

STAY ORDER 



In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930 as amended (7 U.S.C. 499 ., ^1* Defaurt 
Order was .ssued on May 1 1985, awarding reparation to the com 
plamant , the amount of $5,449.91. By letter received May 6 1986 
the person residmg at respondent's address, Alvin CortopLf sub 
muted an answer on behalf of respondent. However/befo^ the 
Answer can be accepted for filing, the default must be reopened 
upon a showmg that there was a "good reason" why the ^answer 
was not filed in a timely fashion. 7 CFR 47 25(e) answer 

Accordingly, the May 1, 1985, Default Order 'is hereby staved 
and respondent is given 10 days from its receipt oft^orK 
provide a good reason" as referred to above. Respondent's failure 
to do so W1H r e su i t in the immediate reinstatement of the Defau 



C - INC 

decision by Donald A. Campbell, Judicial Officer. 

STAY ORDER 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 et seg.fl Default 
Order was issued on May 8, 1985, awarding reparation to the com- 
plainant in the amount of $431.85. By letter received May 6 1986 
but not processed until after the Default Order was issued S 
spondent submitted a proposed answer. However, the proposed 
answer cannot be accepted for filing until the default ia reopened 
upon a showmg by respondent that there was a "good reason'' whv 
a timely answer was not filed. 7 CFR 47.25(e). 



1426 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

Accordingly, the May 8, 1985, order is stayed, and respondent 
will have 10 days from its receipt of this order to provide a "good 
reason" as explained above. The failure of respondent to do so will 
result in the immediate reinstatement of the Default Order. 



GROWERS MARKETING SERVICE, INC. v. WALDRON PRODUCE Co., 
PACA Docket No. RD-85-268. Decided June 17, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 

STAY ORDER 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 et seg.), a Default 
Order was issued on June 7, 1985, awarding reparation to the com- 
plainant in the amount of $7,781.50. In a letter received May 30, 
1985, but not processed until after the Default Order was issued, 
respondent has stated that it is enclosing proof of its answer. Such 
enclosure consists of a copy of a letter by Gene Waldron dated Jan- 
uary 18, 1985. This January 18 letter will not be accepted as re- 
spondent's answer, as respondent has not provided a "good reason" 
why it failed to file an answer within 20 days from the date of serv- 
ice of the complaint, March 19, 1985. See 7 CFR 47.25(e). Respond- 
ent will have 10 days from its receipt of this order to provide such 
a reason, and its failure to do so within the specified time will 
result in the immediate reinstatement of the Default Order. 

The Default Order of June 7, 1985, is hereby stayed. 



MISSION PRODUCE INC. v. CORGAN & SON, INC., PACA Docket No. 
RD-85-195. Decided June 18, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 

ORDER VACATING STAY ORDER, REINSTATING DEFAULT ORDER 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499 et seq.}, a Default 
Order was issued on April 17, 1985, awarding reparation to the 
complainant in the amount of $2,982.50. By letter received April 
22, 1985, respondent filed a proposed answer. On May 13, 1985, a 
Stay Order was issued, staying the Default Order and giving re- 
spondent 10 days from its receipt of such order in which to submit 
a "good reason" to warrant reopening the case after default pursu- 



MISCELLANEOUS 
Volume 44, Number 8 



a . nt to 7 CFR 47.25(e). Respondent was advised that it* fiiiium to 
timely file such a reason would result in the immediate rimiHlnto- 
m ent of the Default Order Respondent failed to submit anything 
Within the specified period. 



--~,^ uiu specified period. 

Accordingly, the Stay Order of May 13, 1985 is horoby vncnted 
and the April 17, 1985, Default Order is reinstated. The ropnrntion 
awarded in the Default Order shall be paid within 30 days from tlui 
date of this order. 



& JPRODucE Co., INC. v. CORGAN & SON, INC., PACA Docket No 
KD-85-19G. Decided June 18, 19S5. 



cer. 



Decision by Donald A. Campbell, Judicial Offi 

ORDER VACATING STAY ORDER AND REINSTATING DEFAULT 



ities " fq?n eeng Under the Pe "shable Agricultural Cominod- 

FaHed to fi P , V 3S ?***** ^ ^^ 4 " a et ***'>' the rea PO"dent 
1 7 i qS a fc j mely answer ' A Default Or der was issued on April 

t0 com P^nant in the amount of 



re- 



good reasowhv , 

1985 Tn,?M K Untimej y Proposed answer, filed on April 11 

thf f 1 / C ,T ted f r filing ' The Ma ^ 6 ' 1985 ' ^der stated 

perfod would ^ f ^ t0 BUbmit 3 g d reas n within the " S 
n^T 7 uld j reault ln *e reinstatement of the Default Order Re 
spondent made no submissions during the specified period ' 

April ^7 S'n f 6 ^ '' 1985 ' ^ Ord - ia 'Seated and the 
^ D *" Btated - The reparation awarded 

Pald Within 30 days from the 



FRANCIS PRODUCE Co., INC. v. TOMATO OF VA PAPA ni , * T 
RD-85-211. Decided June 18, 1985. D cket No ' 

Decision by Donald A. Campbell, Judicial Officer. 

STAY ORDER 

In this reparation proceeding under the 
Commodities Act, 1930, as amended (7 U.S.-o *v 
Order was issued on April 24, 1985, awarding 



1428 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

complainant in the amount of $9,576.00. By letter received May 13, 
1985, respondent has moved that this matter be reopened. 

Accordingly, the order of April 24, 1985 is hereby stayed. Com- 
plainant may have fifteen (15) days from receipt of this order to file 
an answer to the petition to reopen after default. 



GARREN-TEED Pao. Co. INC. v. BENCHMARK BROKERAGE INC., PACA 
Docket No. RD-85-269. Decided June 21, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 
ORDER CORRECTING PRIOR ORDER 

In this reparation proceeding under the Perishable Agricultural 
Commodities Act, 1930, as amended (7 U.S.C. 499a et seq.\ a De- 
fault Order was issued on June 10, 1985, ordering respondent to 
pay complainant $9,097.35, plus interest at the rate of 13 percent 
per annum from October 1, 1984. However, the amount complain- 
ant claimed was owed it by respondent was actually $91,097.35, and 
the latter amount is found to be the amount of damages to which 
complainant is entitled. Therefore, the June 10, 1985, Default 
Order is hereby corrected to require the payment of $91,097.35, 
plus interest to complainant by respondent as the amount owing. 

Respondent's failure to pay complainant the amount ordered 
paid in the June 10, 1985, Default Order, as corrected in this 
Order, within 30 days from the Date of this Order, shall constitute 
a violation of Section 2 of the Act (7 U.S.C. 499b). 



DIXON ToM-A-ToE COMPANIES, INC. v, R. H. PRODUCE, INC., and/or 
FAR HORIZON TRADING COMPANY INC., PACA Docket No. RD- 
85-216. Decided June 28, 1985. 

Decision by Donald A. Campbell, Judicial Officer. 

ORDER OF DISMISSAL 

This is a reparation proceeding under the Perishable Commod- 
ities Act, 1930, as amended (7 U.S.C. 499a T3et seq.). A timely com- 
plaint was filed in which complainant seeks reparation against re- 
spondents in the amount of $2,217.60 in connection with a transac- 
tion involving the shipment o'f tomatoes in interstate commerce. 

Copies of the formal complaint were served on respondents. By 
letter dated May 81, 1985, complainant notified the Department 



MISCELLANEOUS U2Q 

Volume 44, Number 3 



a 



^tter of M 31 mf tT^T* S daim - Com P ] *^nt, in it, 
herein ' ' authonzed dismissal of its complaint filed 

Accordingly, the complaint is hereby dismissed. 



Decision by Donald A. Campbell, Judicial Officer. 

ORDER OF CONTINUANCE 



p io n 

Packers, s an individual whose address is P.O. Box 2636 
City, Florida Respondent, Walter Gailey & Sons Inc is a I 
tion whose address is 4400 Woodland Ave., Cleveland Ohio 

under the Act at ^ - - 



A Default Order was issued against respondent on May 1 1985 
In a letter to the Department which was received prior to the De- 



rerbUtn0t Pr CeSSed Until after I* issu "ce, respondent 



, , responent 

advised that it had filed in the United States Bankruptcy Court 
Northern District of Ohio, on February 20, 1985 (case no. B-85-00- 
399), a voluntary petition for reorganization pursuant to Chapter 
11 of the Bankruptcy Act (11 U.S.C. 1101-1174). The Department 
also was advised that a discharge in the bankruptcy proceeding 
would be a release of the claim before the Department. 

11 U.S.C. 362 provides for an automatic stay against continuing 
an action involving a debt once a party has filed a petition under 
the Bankruptcy Code. Therefore, in accordance with 11 U.S.C. 
362, this reparation proceeding is hereby continued until the De- 
partment receives proper notification that the Chapter 11 proceed- 
ing now pending in the United States Bankruptcy Court has been 
closed, dismissed, or converted to straight bankruptcy, or that the 



1430 PERISHABLE AGRICULTURAL COMMODITIES ACT 

Volume 44, Number 3 

debts have been discharged through confirmation of a Plan of Ar- 
rangement. 



IM,ANT(1IIAKANTINU ACT |,j 

Volume l-l. Numbi-r ;i 

fn re; JUAN ACJUII.AK HAM IKK/., FQ Docket No. lf.7 Derided Muv ! 
1985. 

Importing "imw from Mexico Civil I'nmlt.v Cmim-nt. 

Joseph Pembroke, for eomplniimnt, 
Respondent, pro (-". 

^Decision by William J. Weber, Admitmtmtive Law Jutluv. 

CONHIONT DKCIHION 

This proceeding was instituted under tho Act of Auimnt 20 HIP; 
a. amended (Act) (7 U.S.C, iOl-HMa, 107) by a con^aint fi, t d )v ' 
the Administrator of the Animal and Plant Health Inspection Sorv 
ice alleging that Juan Aquilar Ramirez, respondent, violated thn 
Acts and regulations promulgated thereunder (7 CFK Ml!) 5(i 
The parties have agreed that this proceeding should bo' 
by entry of the Consent Decision set forth below an. 
to the following stipulations: 

1 For the purposes of this stipulation and the provisions of 
this Consent Decis.on only, respondent specifically admits that thn 
Secretary of the United States Department of Agriculture has iu 
risdiction in this matter, neither admits nor denies the remaining 
allegations in the complaint, admits to the Findings of Fact set 
forth below, and waives: 

(a) uny further procedure; 

(b) any requirements that the final decision in this proceed 
ing contain findings nnd conclusions with respect to all material 
issues of Inct, law, or discretion, as well as the reasons or bases 
thereof; 

(0 nil rights to seek judicial review and otherwise challenge 
or contest tho validity of this decision; and 

2. Respondent nUn stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding nnd waives uny action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(5 U.S.C. 504 et /.) for fees nnd other expenses incurred by the 
respondent in connection with this proceeding. 

FINDINGS OF FACT 

1. Juan Aquilar Ramirez, is an individual whose mailing address 
is 208 E. Crosby, Apt. , El Paso, Texas 79902. 

2. On or about August 1, 1984, the respondent imported 25 limes 
from Mexico to El Paso, Texas. 



14 32 PLANT QUARANTINE ACT 

Volume 44, Number 3 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following order in 
disposition of the proceeding, such order will be issued. 

ORDER 

The respondent is assessed a civil penalty of one hundred dollars 
($100.00) which shall be payable in ten equal installments to the 
"Treasurer of the United States" by certified check or money 
order, and which shall be forwarded to Joseph P. Pembroke, Office 
of the General Counsel, Room 2422 South Building, United States 
Department of Agriculture, Washington, D.C. 20250, within thirty 
(30) days from the effective date of this order. 



In re: MRS. ROBERT LINDSAY, PQ Docket No. 68. Decided May 13, 
1985. 

Interstate movement of sugarcane from Hawaii; attempting to ship soil around the 
roots of three plants Civil Penalty Consent. 

Fronda Woods, for complainant. 
Respondent, pro se. 

Decision by John A, Campbell, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Plant Quarantine Act 
of August 20, 1912, as amended (Act) (7 U.S.C. 161-1648. 167), 
and the Federal Plant Pest Act, as amended (Act) (7 U.S.C. 
160aa-15Qjj), by a complaint filed by the Administrator of the 
Animal and Plant Health Inspection Service alleging that Mrs. 
Robert Lindsay, respondent, violated the Acts and regulations pro- 
mulgated thereunder (7 CFR 301.87 et seq. and 7 CFR 318.60 et 
seq.l The parties have agreed that the proceeding should be termi- 
nated by entry of the Consent Decision set forth below and have 
agreed to the following stipulations; 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondent specifically admits that the 
Secretary of the United States Department of Agriculture has ju- 
risdiction in this matter, neither admits nor denies the remaining 
allegations in the complaint, admits to the Findings of Fact set 
forth below, and waives: 



MRS. ROBERT LINDSAY 1433 

Volume 44, Number 3 

*) any requirements that the final decision in this proceed- 
issnp? , a !f fi " dingS and condusion s with respect to all material 
thereof r discretion > as wel1 as the Basons or bases 






incurred by the 

FINDINGS OF FACT 



CONCLUSIONS 



The respondent having admitted the jurisdictional facts and 
hav agre d to the provisiong set forth j ~ 



disposition of the proceeding, such order will be issued. 

ORDER 

respondent is assessed a civil penalty of one hundred dollars 



n , oars 

which shall be payable to the "Treasurer of the United 
States by certified check or money order, and which shall be for- 
warded to Fronda C. Woods, Office of the General Counsel Room 
2422, South Building, United States Department of Agriculture 
Washington, D. C. 20250-1400, within thirty (30) days from the ef- 
fective date of this order. 



1434 PLANT QUARANTINE ACT 

Volume 44, Number 3 

In re; GRAEBEL VAN LINES, INC., PACA Docket No. 61. Decided May 

21, 1985. 

Movement of furniture interstate from gypsy moth high risk area to gypsy moth 
non-regulated area Consent Civil Penalty. 

Kevin Thiemann, for complainant. 
Respondent, pro se. 

Decision by Edward H. McGrail, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Plant Quarantine Act 
of August 20, 1912, as amended, and the Federal Plant Pest Act (7 
U.S.C. 151 et seq, and IGOaa et seq.) (Acts) by a complaint filed by 
the Administrator of the Animal and Plant Health Inspection Serv- 
ice alleging that Graebel Van Lines, Inc., respondent, violated the 
Acts and regulations promulgated thereunder (7 CFR 301,46 et 
seq.}. The parties have agreed that this proceeding should be termi- 
nated by entry of the Consent Decision set forth below and have 
agreed to the following stipulations: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondent specifically admits that the 
Secretary of the United States Department of Agriculture has ju- 
risdiction in this matter, neither admits nor denies the remaining 
allegations in the complaint, admits to the Findings of Fact set 
forth below, and waives: 

(a) Any further procedure; 

(b) Any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 
thereof; 

(c) All rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waives any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(5 U.S.C. 504 e( seq,) for fees and other expenses incurred by the 
respondent in connection with this proceeding, 

FINDINGS OF FACT 

1. Graebel Van Lines, Inc., respondent, is a corporation doing 
business at 719 North 3rd Avenue, P.O. Box 1085, Wausau, Wiscon- 
sin 54401. 



AMERICAN AIRLINES 
Volume 44, Number 3 



1435 



CONCLUSIONS 






TX f 

TX, for respondent. 



CONSENT DECISION 

This proceeding was inqHtnf^ j 

as amended (Actf (7 U.S a T o^a 15^ 

the Administrator of the Animal J^p, * \ 

.ce alleging that American Tirines r " 

and regulations promulgated thl ^"^nt, violated 

The parties have agrld tha? ^ ^ reunde j r .' 7 CPR 318.13 

by entry of the CoS Dec L L^ sTS f UH "* '" 

to the following stipulations th below and ha agreed 



Plant ^ Act, 
com P'aint rtied by 

Inspecti " Serv" 
, violated the Act 
' 



this 

Secretary of the United State 
riediotion in this matter, 



admits that 



1436 PLANT QUARANTINE ACT 

Volume 44, Number 3 

allegations in the complaint, admits to the Findings of Fact set 
forth below, and waives: 

(a) any further procedure; 

(b) any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 

thereof; 

(c) all rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waives any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(5 U.S.C. 504 et seq.) for fees and other expenses incurred by the 
respondent in connection with this proceeding. 

FINDINGS OF FACT 

1. American Airlines, respondent, is a corporation whose address 
is Terminal Box #52, Honolulu International Airport, Honolulu, 

Hawaii 96819. . 

2. On or about November 18, 1984, at Honolulu International 
Airport, uninspected baggage, checked through to Tulsa, Oklaho- 
ma, was discovered in the respondent's baggage room. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following order in 
disposition of the proceeding, such order will be issued. 

ORDF.Il 

Respondent American Airlines is assessed a civil penalty of three 
hundred seventy-five dollars ($375) which shall be payable to the 
"Treasurer of the United States" by certified check or money 
order, and which shall be forwarded to Fronda C. Woods, Office of 
the General Counsel, Room 2422, South Building, United States De- 
partment of Agriculture, Washington, D.C. 20260-1400, within 
thirty (30) days from the effective date of this order. 



SAN JUAN PRODUCE 1437 

Volume 44, Number 3 

-fo re; SAN JUAN PRODUCE, PQ Docket No. 39. Decided May 24, 
1985. 

Offered shipment of produce on common carrier from Puerto Rico to Bronx, New 

York Consent. 

Joseph Pembroke, for complainant. 
Respondent, pro se. 

Decision by Victor W. Palmer, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Plant Quarantine Act 
of August 20, 1912, as amended, Act) (7 U.S.C. 151 et seq.) by a 
complaint filed by the Administrator of the Animal and Plant 
Health Inspection Service alleging that the respondent violated the 
Act and regulations promulgated thereunder (7 CFR 318.30(c)). 
The parties have agreed that this proceeding should be terminated 
by entry of the Consent Decision set forth below and have agreed 
to the following stipulations: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, the respondent specifically admits that 
the Secretary of the United States Department of Agriculture has 
jurisdiction in this matter, neither admits nor denies the remain- 
ing allegations in the complaint, admits to the Findings of Fact set 
forth below, and waives: 

(a) any further procedures; 

(b) any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issue of fact, law, or discretion, as well as the reasons or bases 
thereof; 

(c) all rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waives any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(5 U.S.C. 504 et seq.} for fees and other expenses incurred by the 
respondent in connection with this proceeding. 

FINDINGS OF FACT 

1. San Juan Produce, the respondent, is a corporation registered 
in Puerto Rico and having its principal place of business at P.O. 
Box J, Caparra Heights Station, San Juan, Puerto Rico 00922. 



1438 PLANT QUARANTINE ACT 

Volume 44, Number 3 

2. On or about May 4, 1984, the respondent offered for shipment 
to a common carrier 675 bags of sweet potatoes to be moved from 
Puerto Rico to the Bronx, New York. 

CONCLUSIONS 

The respondent having admitted the jurisdiction al facts and 
having agreed to the provisions set forth in the following order in 
disposition of this proceeding, such order and decision will be 
issued, 

ORDER 

The respondent is assessed a civil penalty of five hundred dollars 
($500). The respondent shall send, payable to the "Treasury of the 
United States" a certified check or money order, to Joseph P. Pem- 
broke, Office of the General Counsel, Room 2422 South Building, 
United States Department of Agriculture, Washington, D.C. 20250- 
1400, within thirty (30) days from the effective date of this order. 



In re: WAH KWONG SHIPPING AGENCY COMPANY, LTD., PQ Docket 
No. 69. Decided May 24, 1985. 

Transporting foreign origin garbage, not contained in leak proof receptacles as 

required Consent. 

Joseph Pembroke, for complainant. 
Respondent, pro se. 

Decision by Dorothea A. Baker, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Act of February 2, 
1903, as amended (Act) (21 U.S.C. 111, 120), the Federal Plant 
Pest Act, as amended (7 U.S.C. 150aa et seq.) and the Act of 
August 20, 1912, as amended, (7 U.S.C. 161 and 162), by a com- 
plaint filed by the Administrator of the Animal and Plant Health 
Inspection Service alleging that Wah Kwong Shipping Company, 
Ltd., respondent, violated the Acts and regulations promulgated 
thereunder (9 CFR 94.5 et seq.) and (7 CFR 300.400 et seq.l The 
parties have agreed that this proceeding should be terminated by 
entry of the Consent Decision set forth below and have agreed to 
the following stipulations: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondent specifically admits that the 
Secretary of the United States Department of Agriculture has ju- 



WAH KWONG SHIPPING AGENCY COMPANY, LTD. 1439 

Volume 44, Number 3 

risdiction in this matter, neither admits nor denies the remaining 
allegations in the complaint, admits to the Findings of Fact set 
rorth below, and waives: 

(a) any further procedure; 

(b) any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 
thereof; 

(c) all rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waives any action against the United States Depart- 

r^Ti v A g -n, UltUre Un , der the Equal Access to Just ice Act of 1980 
W U.&.U o04 et seq.} for fees and other expenses incurred by the 
respondent in connection with this proceeding. 

FINDINGS OK FACT 

f J' M?V ^ W ng S ^ 7 ipping A enc y Co ^Pany, Ltd., is the owner of 
wie M/V Fmgwo Ventura, and their address is 18th Fl. Wah 
Kwong Building, 48-62 Hennessy Rd., Hong Kong. Their agent in 

n T I S ted ,? t t teS 1 ! S Lavino Shipping Company whose address is 
7UO LaFayette Building, Philadelphia, Pennsylvania 19106 

2 On or about December 7, 1984, the respondent on its ship the 
M/V Pmgwo Ventura, at Wilmington, Delaware, had foreign origin 
garbage which was not contained in tight, leak-proof, covered re- 
ceptacles, as required. 

CONCLUSIONS 

The respondents having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following order in 
disposition of the proceeding, such order will be issued. 

ORDER 

The respondents are assessed a civil penalty of three hundred 
and twenty-five dollars ($325) which shall be payable to the "Treas- 
urer of the United States" by certified check or money order, and 
which shall be forwarded to Joseph P. Pembroke, Office of the Gen- 
eral Counsel, Room 2422 South Building, United States Depart- 
ment of Agriculture, Washington, D.C. 20250, within thirty (30) 
days from the effective date of this order. 



1440 PLANT QUARANTINE ACT 

Volume 44, Number 3 

In re: KLM ROYAL DUTCH AIRLINES, PQ Docket No. 75. Decided 
May 30, 1985. 

Importing cartons of flowers to U.S. from Netherlands Consent. 

Joseph Pembroke, for complainant. 
Respondent, pro se. 

Decision by Edward H, McGrail, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Federal Plant Peat Act, 
as amended (7 U.S.C. 150aa et seq.) and the Act of August 20, 
1912, as amended, (7 U.S.C. 161 and 162), by a complaint filed by 
the Administrator of the Animal and Plant Health Inspection Serv- 
ice alleging that KLM Royal Dutch Airlines, respondent, violated 
the Acts and regulation promulgated thereunder (7 CFR 319.74- 
3(a)). The parties have agreed that this proceeding with respect to 
respondent should be terminated by entry of the Consent Decision 
set forth below and have agreed to the following stipulations: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondent specifically admits that the 
Secretary of the United States Department of Agriculture has ju- 
risdiction in this matter, neither admits nor denies the remaining 
allegations in the complaint, admits to the Findings of Fact set 
forth below, and waives: 

(a) any further procedure; 

(b) any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 
thereof; 

(c) all rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waives any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(6 U.S.C, 504 et seq.) for fees and other expenses incurred by the 
respondent in connection with this proceeding. 

FINDINGS OF FACT 

1, KLM Royal Dutch Airlines, respondent, is a corporation whose 
address is JFK International Airport, Cargo Building #87, Jamai- 
ca, New York 11430. 



GARY FIELD AND CONTINENTAL AIRLINES 144] 

Volume 44, Number 3 

2. On or about August 3, 1984, respondent imported four cartons 
01 assorted cut flowers from the Netherlands to JFK International 
Airport, Jamaica, New York 11430. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and 
naving agreed to the provisions set forth in the following order in 
opposition of the proceeding, such order will be issued. 

ORDER 

f*4nm Wndentte assessed a civil penalty of four hundred dollars 
($400) which shall be payable to the "Treasurer of the United 
States ' by certified check or money order, and which shall b P fn, 
warded to Joseph P. Pembroke, Office of the General ConnSl" 



In re: GARY FIELD and CONTINENTAL AIRLINES, PQ Docket No 78 
Decided May 31, 1985. WOCKCC m. / 

Checked uninspected baggage; transported uninspected baggage-Consent. 
Fronda Woods, for complainant. 
Respondent, pro se. 

Decision by William J. Weber, Administrative Law Judge, 

CONSENT DECISION 

This proceeding was instituted under the Federal Plant Pest Act 
as amended (Act) (7 U.S.C. 150aa-150jj), by a complaint filed by 
the Administrator of the Animal and Plant Health Inspection Serv- 
ice alleging inter alia that Gary Field, respondent, violated the Act 
and regulations promulgated thereunder (7 CFR 318.13 et sea) 
The parties have agreed that the proceeding with respect to re- 
spondent Gary Field should be terminated by entry of the Consent 
Decision set forth below and have agreed to the following stipula- 
tions: 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondent Gary Field specifically 
admits that the Secretary of the United States Department of Agri- 
culture has jurisdiction in this matter, neither admits nor denies 
the remaining allegations in the complaint, admits to the Findings 
of Fact set forth below, and waives: 



1442 PLANT QUARANTINE ACT 

Volume 44, Number 3 

(a) any further procedure; 

(b) any requirements that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 
thereof; 

(c) all rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent Gary Field also stipulates and agrees that the 
United States Department of Agriculture is the "prevailing party" 
in the proceeding and waives any action against the United States 
Department of Agriculture under the Equal Access to Justice Act 
of 1980 (5 U.S.C. 604 et seq.) for fees and other expenses incurred 
by the respondent in connection with this proceeding. 

FINDINGS OF FACT 

1. Gary R. Field, respondent, is a individual whose address is 
2462 Kuhio Ave., Apt. 309, Honolulu, Hawaii 96815. 

2. On or about October 8, 1984, at Honolulu International Air- 
port, respondent Gary Field checked uninspected baggage to 
Denver, Colorado. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following order in 
disposition of the proceeding, such order will be used. 

ORDER 

Respondent Gary Field is assessed a civil penalty of one hundred 
twenty-five dollars ($125) which shall be payable to the "Treasurer 
of the United States" by certified check or money order, and which 
shall be forwarded to Fronda C. Woods, Office of the General Coun- 
sel, Room 2422, South Building, United States Department of Agri- 
culture, Washington, B.C. 20250-1400, within thirty (30) days from 
the effective date of this order. 



In re; FRANCISCO RAMOS, PQ Docket No. 36, Decided June 10, 1985. 
Decision by Donald A, Campbell, Judicial Officer. 
RULING ON CERTIFIED QUESTIONS 

On June 6, 1986, Administrative Law Judge William J. Weber 
(ALJ) certified to the Judicial Officer the question as to whether 



JACK M. ERCANBR ACK 1 44g 

Volume 44, Number 3 



preclude the 

answer is yes> and - 



$1,000 civil penakv ~,L f '' "^ by the ALJ > since *e 

-notion, in^ v rfZ^^^f "T 6 ? 8 SUCh a ^"g 
violation occurred no midHn. -^ g6d Vlolation . ^at if the 
-notion 



^ ^ s^" M ' ERCANBRA ' P Q c k et No. 62. Decided June 12, 
Decision b y Victor W. P almer , Administmtim ^ Judge 

DECISION AND ORDER 

This proceeding was instituted under the Plant n, .. . 
of August 20, 1912, as amended (Act) (7 U S C sl^^ '"^ A<=t 

5 atSr b' Pknt ?" ^/aV^end^ 1 ;^ufc X 



set forth be,o w and have agreed 

denies the remaining allegations in t^ P ^ d ^ Q 
Findings of Fact set forth below, and waives: he 

(a) any further procedure; 

(b) any requirements that the final decision in this proceed- 
ing contain flndmgs and conclusions with respect to all rnaterLl 



1444 PLANT QUARANTINE ACT 

Volume 44, Number 3 

issues of fact, law, or discretion, as well as the reason or basis 
thereof; 

(c) all rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent Barnett Truck Lines also stipulates and agrees 
that the United States Department of Agriculture is the "prevail- 
ing party" in the proceeding and waives any action against the 
United States Department of Agriculture under the Equal Access 
to Justice Act of 1980 (5 U.S.C. 504 et seq.) for fees and other ex- 
penses incurred by the respondent in connection with this proceed- 
ing. 

FINDINGS OF FACT 

1. Barnett Truck Lines, Inc., respondent, is a corporation whose 
address is Asphalt Road, Kinston, North Carolina 28501. 

2. On or about September 17, 1984, respondent Barnett Truck 
Lines, Inc., moved logs interstate from Cecil County, Maryland, 
into Beaufort, North Carolina. 

CONCLUSIONS 

The respondent having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following order in 
disposition of the proceeding, such order will be issued. 

ORDER 

Respondent Barnett Truck Lines is assessed a civil penalty of 
two hundred fifty dollars ($260) which shall be payable to the 
"Treasurer of the United States" by certified check or money 
order, and which shall be forwarded to Fronda C. Woods, Office of 
the General Counsel, Room 2422, South Building, United States De- 
partment of Agriculture, Washington, D.C. 20260-1400, within 
thirty (30) days from the effective date of this order. 



STENA LINE A. R, STENABULK/DAVIDSON 1446 

Volume 44, Number i) 

In re; STENA LINE A. B., STENABULK/DAVIDSON, PQ Docket No. 91. 
Decided June 14, 1985. 

Transporting foreign gni'bajfeConficnt. 

Sherrie Kopka, for complainant. 

Thomas Walsh, Boston, MA, for respondent. 

Decision by Dorothea A. Baker, Administrative Law Judge. 

CONSENT DECISION 

This proceeding was instituted under the Act of February 2, 
1903, aa amended (21 U.S.C. 111 and 120), the Federal Plant Pest 
Act, as amended (7 U.S .C 150aa et seq,) and the Act of August 20, 
1912, as amended (7 U.S.C. 161 and 102) (Acts) by a complaint 
filed by the Administrator of the Animal and Plant Health Inspec- 
tion Service alleging that the respondent violated the Acts and reg- 
ulations promulgated thereunder (7 CFR 880.100 et scq. and 9 
CFR 94.5 et seq.). The parties have agreed that this proceeding 
should be terminated by entry of the Consent Decision set forth 
below and have agreed to the following stipulations; 

1. For the purposes of this stipulation and the provisions of 
this Consent Decision only, respondent specifically admits that the 
Secretary of the United States Department of Agriculture has ju- 
risdiction in this matter, neither admits nor denies the remaining 
allegations in the complaint, admits to the Findings of Fact set 
forth below, and waives; 

(a) Any further procedure; 

(b) Any requirement that the final decision in this proceed- 
ing contain findings and conclusions with respect to all material 
issues of fact, law, or discretion, as well as the reasons or bases 
thereof; 

(c) All rights to seek judicial review and otherwise challenge 
or contest the validity of this decision; and 

2. Respondent also stipulates and agrees that the United States 
Department of Agriculture is the "prevailing party" in the pro- 
ceeding and waives any action against the United States Depart- 
ment of Agriculture under the Equal Access to Justice Act of 1980 
(5 U.S.C. 504 et seq.) for fees and other expenses incurred by the 
respondent in connection with this proceeding. 

FINDINGS OF FACT 

1. Stona Line A. B., Stenabulk/ Davidson, herein referred to as 
the respondent, is a company whose address is P.O. Box 31300-S/ 
400082, Gothenberg, Sweden, and who is the owner of the ship M/ 
V Siena Carrbica. 



1446 PLANT QUARANTINE ACT 

Volume 44, Number 3 



2 Stena Line A. B.'s agent for the purpose of service of process is 
Feabody and Lane, Inc., whose address is 77 North Washington 
Street, Boston, Massachusetts 02114. 

3. On or about October 23, 1984, respondent had foreign origin 
garbage on board the M/V Stena Caribica which arrived in Boston 
Massachusetts after being in Italy. 



CONCLUSIONS 



The Respondent having admitted the jurisdictional facts and 
having agreed to the provisions set forth in the following Order in 
disposition of this proceeding, such Order and Decision will be 
issued. 



ORDER 



Respondent is assessed a civil penalty of two hundred and fifty 
dollars ($260.00) which shall be payable to the "Treasury of the 
United States," by certified check or money order, and which shall 
be forwarded to Sherrie L. Kopka, Office of the General Counsel 
Room 2422 South Building, U.S. Department of Agriculture Wash- 
ington D.C. 20260-1400, within thirty (30) days from the effective 
date of this order. 



In re: RAUL ESPINAR, PQ Docket No. 55. Decided June 21, 1985. 
Decision by Edward H. McGrail, Administrative Law Judge. 
ORDER OF DISMISSAL 

For good cause shown by complainant, the complaint that was 
filed herein against respondent, Raul Espinar, on February 4 1985 
is hereby dismissed. ' 



FRANCISCO RAMOS 1447 

Volume 44, Number 3 

In re: FRANCISCO RAMOS, PQ Docket No. 36. Decided June 24, 1985. 
Bringing prohibited foods to the United States Ruling. 

Fronda Woods, for complainant. 

Respondent, pro se. 

Decision by Donald A, Campbell, Judicial Officer. 

RULING ON RECONSIDERATION 

On June 20, 1985, complainant filed a Petition to Reconsider the 
Judicial Officer's Ruling on Certified Questions. When I ruled on 
June 10, 1985, that respondent's answer raises issues of fact, I was 
unaware of the Department's longstanding construction that when 
prohibited fruits are brought into the United States and declared 
at Customs, the violation has already occurred notwithstanding the 
fact that the violator was unaware of the prohibition and declared 
the item at Customs. In view of complainant's longstanding con- 
struction, I am of the view that respondent's answer, in effect, 
admits that the violation occurred. 

However, the facts set forth in the answer, if believed,, present 
mitigating circumstances which would have a material bearing on 
the question of what sanction, if any, should be imposed. Unless 
complainant is willing to admit the facts set forth in the answer, I 
see no alternative to holding a hearing to determine the truthful- 
ness of the mitigating circumstances alleged in the answer. 

I fully appreciate complainant's problem that many complaints 
are issued in which the answers admit the violation, leaving the 
amount of the sanction as the only issue. Unless respondent, in the 
answer or some other appropriate document, raises mitigating cir- 
cumstances, there is no need for a hearing. But where mitigating 
circumstances are appropriately brought in issue by respondent, 
unless complainant is willing to admit the facts, I know of no alter- 
native to the holding of an evidentiary hearing at which the miti- 
gating circumstances issue can be resolved. 

Issues of fact as to mitigating circumstances are just as impor- 
tant to the ultimate outcome of the case, i.e., the amount of the 
sanction imposed, as are the facts relating to the violation. Accord- 
ingly, where mitigating circumstances are appropriately presented 
by the respondent, unless the matter may be resolved by a stipula- 
tion of facts, a hearing must be held. 



1448 PLANT QUARANTINE ACT 

Volume 44, Number 3 

In re: CONTINENTAL AIRLINES and WEST CENTRAL PRODUCE, INC., PQ 
Docket No. 88. Decided June 17, 1985. 

Decision by John A. Campbell, Administrative Law Judge. 

ORDER GRANTING MOTION TO DISMISS TO WEST CENTRAL PRODUCE 

INC. 

For good cause shown, Complainant's motion to dismiss the com- 
plaint as to West Central Produce, Inc., is granted. 



In re: MAGDALENA ESTRADA, PQ Docket No. 25. Decided June 29 
1985. 

Transporting unprocessed bologna Decision. 

On or about Jan. 14, 1984 respondent imported 10 pounds of unprocessed bologna 
into the U.S. Respondent received complaint and failed to file an answer. 

Kevin Thiemann, for complainant. 
Respondent, pro se. 

Decision by Dorothea A. Baker, Administrative Law Judge, 

This proceeding was instituted under the Act of February 2 
1903, as amended, and the Act of July 2, 1962, as amended (Acts) 
(21 U.S.C. 111 and 21 U.S.C. 134 et seq.) by a complaint issued by 
the Administrator of the Animal and Plant Health Inspection Serv- 
ice, United States Department of Agriculture. The complaint al- 
leged that respondent violated section 111 of the Act of February 2, 
1903 and section 134a of the Act of July 2, 1962 (21 U.S C 111' 

il 4 ^A nd SeCtbn 94 ' 9 Of the relations promulgated thereunder (9 
CFR 94.9). 

Copies of the complaint and the Rules of Practice governing pro- 
ceedings under the Acts were served by the Hearing Clerk, by cer- 
tified mail, upon respondent on October 15, 1984. 

Pursuant to section 1.136 of the Rules of Practice (7 CFR 1 136) 
applicable to this proceeding, respondent was informed in the com- 
plaint and the letter of service that an answer should be filed with 
the Hearing Clerk within twenty (20) days after service of the com- 
plaint, and that failure to file an answer either denying, admitting, 
or explaining the allegations in the complaint and requesting an 
oral hearing would constitute an admission of such allegations and 
a waiver of such hearing. More than twenty days have elapsed 
since respondent was served the complaint in question. Respondent 
has not filed an answer to date. This Decision and Order, therefore, 
IB issued pursuant to sections 1.136 and 1.139 of the Rules of Prac- 
tice applicable to this proceeding. (7 CFR 1.136 and 1.139). 



MAGDALENA ESTRADA 1449 

Volume 44, Number 3 

Accordingly, the material facts alleged in the complaint, which 
are admitted by respondent's failure to file an answer, are adopted 
and set forth herein as the findings of fact. 

FINDINGS OF FACT 

1. Magdalena Estrada is an individual whose address is 5411 
South Main Street, Los Angeles, California 90037, 

2. On or about January 14, 1984, the respondent imported into 
the United States at El Paso, Texas from Mexico approximately 
ten (10) pounds of bologna in violation of section 94.9 of the regula- 
tions (9 CPR 94.9), because the bologna had not been processed, as 
required. 

CONCLUSION 

By reason of the facts in the findings of fact set forth above, re- 
spondent has violated the Act and regulations thereunder. There- 
fore, the following order is issued. 

ORDER 

Magdalena Estrada is hereby assessed a civil penalty of two hun- 
dred fifty dollars ($250.00) which shall be payable to the "Treasurer 
of the United States", by certified check or money order, and 
which shall be forwarded to Kevin B. Thiemann, Office of the Gen- 
eral Counsel, Room 2422 South Building, United States Depart- 
ment of Agriculture, Washingon, D.C. 20250, within thirty (30) days 
from the effective date of this order. 

This order shall have the same force and effect as if entered 
after full hearing and shall be final and effective thirty five (35) 
days after service of this Decision and Order upon respondent, 
unless there is an appeal to the Judicial Officer pursuant to section 
1,145 of the Rules of Practice applicable to this proceeding (7 CFR 
1.146). 



8UIUKCTINDBX 14fio 

MAY-JUNK lOHfi 
ACKICIILTUKAL MA11KHTING ACT ()!'' llt.lli ,,, 

1 A till, 

DISMISSAL 

Not nn issue tlint raiuiroH an uvidonllary hum'ini: fur rcwilu- 
tion ................................................................................................................................ \\'M 

ANIMAL (IUAKANTINK AND HKLATHD LAWK 

CIVIL PENALTY 

Of $200.00 .............................................................................................................. HIM.llrM 

or$2fio.oo ........................................................................................................................ liril 

or $noo.oo ............................................................................................................ , ........... Ufi(i 

OfflHHUM) ........................................................................... , ........................ 11:17,1147, MCI 

or $(jflo.oo ........................................................................................................................ mi;i 

Of$8fiO.OO ........................................................................................................................ mfi 

Of $000.00 .................................................................................. .................................... ,|,| 5 

Of $1,000.00 ................................................. . ............................................... IMH.llfifi.llfi!) 

or $1,1*00.00 .................................................................. , ............ . ......... . ........................... u;m 

or$i,r.oo.oo ..................................................... . ............................................................... n , n 

or $a,ooo.oo ..................................................................................................................... Uf(H 

Of.$l!,000,00 ........................................................... nr ..> 

..... * 1 "" 1 '"t"" + 'l'* + 'lll + ll**ll* ..... ........ t<P>KltlHlt J Utif 

Of$H,000.00 ..................................................................................................................... ii; )r , 

DIHMIHSAL 



HWINK HKALTII PHOTKCTKtN ACT 

Violutlon of, I'otiiliiiK KnrlniK ..................... . ..... . ...... . 

ANIMAL WKLKAUK An 1 
CIVIL 1'KNALTY 



. ................... . ................................................................. 11IBM170 

Of$2fi,000.{IO .................................................... , ................................... _ ................. _ ........ nvo 

8TANDAHDH AND KKdULATIONH 

Ordered tu comply with HlumliirdH dtialfiiK with, l>t not, limited 
to, TdciliUcH, apnco, fwnlluLlon, vutorlnnry euro, nnd hnndliiiK ......................... 11117 

PACKKKH AND STOCKYAHDH A<n\ 1021 
ACCOUNTS AND KKCOUDS 

Keep and maintain, which fully dlBchwu nil (nmHncliunH. ........................ . .......... , 110U 



SUBJECT INDEX 1451 

PACKERS AND STOCKYARDS ACT, 1921-Cont. 

ADMISSION PAGE 

Respondent admits not paying for produce 1233, 1231 

APPEAL 

Denial of, late 1220 

BONDING REQUIREMENT 

Violation of. 1175, 1179, 1181, 1188, 1197 

CHECKS OR DRAFTS 
Issuing insufficient funds checks 1176, 1179, 1189 

CIVIL PENALTY 

Of $325.00 1213 

Of $500.00 1189,1191 

Of $600.00 1188 ' 120 

Of $3,000.00 1216 

Of $7,500.00 1192 

Of $8,600.00 1202 

CUSTODIAL ACCOUNT 

Failure to maintain 

Shippers' proceeds failure to deposit " 

DEALER 

1191 
Bond, failure to file and maintain 

Failure to pay when due " 1212 ' 1213 

Issuing insufficient funds checks "H "* *' 1213 

Misuse of funds received as proceeds from sales 

Ordered not to engage in business as dealer or market agency H91 

. t . 1188, 1194, 1199 

Suspended as a registrant 

1212 
Suspended for 30 days 

DEALER AND MARKET AGENCY 

Engaging in any act with any market agency or dealer which 

would operate as a fraud or deceit upon the cons.gr.ors of live- ^ 

stock 

1173 

Failure to pay when due 

Permitting employees to purchase livestock out of consign- 
ments 



1452 SUBJECT INDEX 

PACKERS AND STOCKYARDS ACT, 1921-Cont. 
DEALER AND MARKET AGENCY-Cont. PAGE 

Suspended as a registrant 117 & 

DEFAULT 
Notice of effective date of Decision and Order 1218 

INSOLVENCY 

Current liabilities exceeds current assets 1186 

Engaging in business while insolvent 1173 

PACKER 

Failure to pay when due 1189 

Insufficient funds checks issuing 1189 

PAYMENT 
Failure to pay when due 1176 11? p 

SHIPPERS' PROCEEDS ACCOUNT 

Failure to deposit into ^13 121G 

Failure to maintain 121fi 

Failure to maintain properly 1213 

Misuse of funds , 216 

SUPPLEMENTAL ORDER 

Bonding requirements, in compliance with, suspension 

terminated 1219,1220 

SUSPENSION OF REGISTRATION 
Suspended for: 



1206 
1205 

1209 



2'/2 years ........................................................................................................ 

Until in compliance with bonding requirements .......................................... H81, 1182 

Until solvent ..................................................... ; .............................. i<nr 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930 
ADMISSION 

Respondent admits not paying for produce ............................................................. 1299 



SUHJKCT INDEX 1468 

PERfSHAULE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 

PAGE 
APPEAL 

Motion dtmlud 124 

Order denying 124 

BANKRUPTCY 
Reparation action continued ponding bankruptcy proceeding 1371, 1378, 1429 

CONTRACT 

iqnq 

Broach of, failure) to prove 10 " 

CONTRACT PRICE 

Liable for full contract price 185fi 

CORRECTIONS 

Default order corrected 

COtlNTKKCLAIM 

, . , , 1366 

Dismissal of. 

DAMAGES 

1317 
Baaed on percent of defects 

1822 

Denied 

1^07 
Failure to submit sufficient evidence of loss 

DEFAULT 

. . t , 1427 

Default order reinstated 

DISMISSAL 

1 180 
Amount of damage equal contract price 

1 T71 
Complainant filed claim in another court 

Complaint is without merit 

1382 

No now evidence 

Petition for reconsideration denied 

Petition for reconsideration dismissed 1384, 1380, 1393, 1396, 1398, 1400 

Respondent tendered check to complainant in full settlement,.. 1370, 1879, 1380, 

FAILURE TO PAY PROMPTLY 

, 1237 

Publication of the facts 

PURCHASE PRICE 

1240, 1251, 1265, 1309 

Failure to pay 



1454 SUBJECT INDEX 

PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930-Cont. 
PURCHASE PRICE-Cont. PAGE 

Failure to pay and/or failure to pay when due 1261 

Failure to pay in full 1240 

Failure to pay promptly 1261 

RECONSIDERATION/REOPEN 

Correction of prior order iggg 

Order reopening after default 1372, 1422, 1424 

Petition for reconsideration denied 1234, 1374, 1378, 1377 

Petition for reconsideration dismissed 1374 

Reinstating default order 1372 

REPARATION AWARDED 
Admission of liability 1273, 1274, 1297, 1298, 1363, 1364, 1366 

Balances due and owing on transactions... 1265, 1268, 1274, 1278, 1280, 1289, 1293, 

1327, 1334, 1347, 1353 

Failure to pay 1268, 1312, 1315, 1316, 1331 

Liable for contract price , 1333 

Method atterbating payment 1346 

Respondent admits receiving and accepting produce 1299 

STAY ORDER 

Pending filing of petition for reconsideration 1368 

Pending motion for reconsideration 1376 

Pending motion to reopen or reconsider 1375 

Pending petition for reconsideration 1876 

Pending petition to rehear and reopen 1377 

Pending petition to reopen after default 1425, 1426, 1428 

Pending reply to notice to show good cause 1422, 1423, 1424 

Pending submission of good cause for not filing 1423 

Vacated 1377,1427 

Vacated prior order reinstated 
WARRANTY 
Breech of, failure to prove 



SUBJECT INDEX 1455 

PLANT QUARANTINE ACT PAGE 

ClVII- PENALTY 

Of $100.00 1431,1432 

Of $125.00 1441 

Of $250,00 1434 

Of$82fi.l)0 1488 

Or$!7fi.QO 1485 

Of $-100.00 1440 

OrjfiOO.UO 1437 

DISMISSAL 
Complaint dismissed 1446 

PUOUimTOD/HKHTlUCTKl) AUTICLE 
Transporting prohibited fruita to U.S 1447