BEFORE THE SECRETARY OF AGRICULTURE

UNITED STATES DEPARTMENT OF AGRICULTURE

(No. 9804)

In re JESSE H. ASHCRAFT. P&S Docket No. 3479. Decided May 4, 1965.

Failure to pay when due-Checks-Records-Insolvency-Suspension

of registration-Consent

Respondent is ordered to cease and desist from failing to pay when due for livestock purchased and from issuing insufficient funds checks in payment of such livestock, is ordered to keep records that fully disclose all transactions in his business under the act and is suspended as a registrant for a period of 30 days and thereafter until no longer insolvent. Mr. Samuel J. Harris for complainant. Berry and Blanchard, Coshocton, Ohio, for respondent.

Decision by Thomas J. Flavin, Judicial Officer

PRELIMINARY STATEMENT

This is a disciplinary proceeding under the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et seq.), hereinafter referred to as the Act, instituted by a complaint filed March 12, 1965, by the Director, Packers and Stockyards Division, Consumer and Marketing Service, United States Department of Agriculture, charging respondent with being insolvent within the meaning of the Act (7 U.S.C. 204), and with violating certain provisions of the Act and the regulations thereunder (9 CFR 201.1 et seq.).

On April 8, 1965, respondent filed an amended answer in which he admits the jurisdictional allegations of the complaint, neither admits nor denies the remaining allegations, waives oral hearing and the report of the Hearing Examiner, and consents to the issuance of a specified order with findings of fact and conclusions based on the allegations of the complaint. Complainant has recommended that the order consented to by respondent be issued.

Cite as 24 A.D. 563

FINDINGS OF FACT

1. Zanesville Community Sales Company, Inc. stockyard, Zanesville, Ohio, and Barnesville Livestock stockyard, Barnesville, Ohio, hereinafter referred to as the stockyards, are now, and were at all times material herein, posted stockyards subject to the provisions of the Act.

2. Respondent, whose address is Route 2, Frazeysburg, Ohio, was at all times material herein, engaged in business as a livestock dealer in commerce, buying and selling livestock in commerce for his own account and is now, and was at all times material herein, registered with the Secretary of Agriculture as a dealer under the Act.

3. Respondent's current liabilities presently exceed his current assets. As of February 1, 1965, respondent's current liabilities exceeded his current assets by approximately $16,667.37.

4. Respondent, on or about the dates and in the transactions set forth below, purchased livestock in commerce and issued checks in purported payment of the purchase price thereof which checks were returned unpaid by the bank upon which they were drawn because of insufficient funds in respondent's account.

5. Respondent failed to pay, when due, the full purchase price of the livestock referred to in Finding of Fact 4 above.

6. Respondent, in connection with his livestock dealer operations, maintained a running account with Barnesville Livestock, Barnesville, Ohio. As of February 1, 1965, respondent owed $3,223.96 to Barnesville Livestock on such account for livestock purchases made prior to October 18, 1964. Respondent has failed to pay the amount due on said account.

7. Respondent, during the period from on or about February 1, 1960, through February 1, 1965, in connection with his livestock dealer operations under the Act, failed to keep accounts, records and memoranda which fully and correctly disclosed all transactions involved in his business. Respondent, during such period, failed to keep (1) a general ledger of accounts showing

Cite as 24 A.D. 563

assets, liabilities, income, expenses and capital or net worth; (2) a cash receipts and disbursements journal; and (3) periodic reconciliations of his bank account.

CONCLUSIONS

By reason of the facts set forth in Finding of Fact 3, it is concluded that respondent is insolvent within the meaning of the Act (7 U.S.C. 204), and by reason of the facts set forth in Findings of Fact 4, 5, 6 and 7, it is concluded that respondent has wilfully violated sections 312(a), and 401 of the Act (7 U.S.C. 213 (a) and (221) and sections 201.43 (b) of the regulations (9 CFR 201.43 (b)).

Complainant has recommended that the order consented to by respondent be issued. The order will be issued.

ORDER

Respondent shall cease and desist from:

(1) Failing to pay when due the purchase price of livestock purchased in commerce;

(2) Issuing checks in payment for livestock purchased in commerce without maintaining sufficient funds on deposit in the bank on which they are drawn to pay such checks.

Respondent shall keep accounts, records and memoranda which fully and correctly disclose all transactions involved in his business as a dealer subject to the Act; including among other things: (a) a general ledger of accounts showing assets, liabilities, income, expenses and net worth or capital; (b) a cash receipts and disbursements journal; and (c) monthly reconciliations of his bank account.

Respondent is suspended as a registrant under the Act for a period of 30 days and thereafter until he demonstrates that he is no longer insolvent. When respondent demonstrates that he is no longer insolvent, a supplemental order will be issued in this proceeding terminating the suspension after the 30-day period.

This order shall become effective on the sixth day after service thereof upon respondent and copies hereof shall be served upon the parties.

Cite as 24 A.D. 566

(No. 9805)

In re CLEVELAND UNION STOCK YARDS COMPANY. P&S Docket No. 442. Decided May 4, 1965.

Modification of rates and charges

Respondent is authorized to make the requested modifications in its current schedule of rates and charges.

Mr. J. Robert Franks for Packers and Stockyards Division, Consumer and Marketing Service. Respondent pro se.

Decision by Thomas J. Flavin, Judicial Officer

This is a rate proceeding under the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.). The respondent is now operating under an order issued on November 10, 1964 (23 A.D. 1357), continuing in effect to and including November 30 1966, an order issued on December 19, 1963 (22 A.D. 1341), authorizing assessment of the current temporary schedule of rates and charges.

By a petition filed on March 17, 1965, the respondent requested authority to modify, as soon as possible, the current temporary schedule of rates and charges in certain respects. Notice of the petition and its contents was published in the Federal Register on April 13, 1965 (30 F.R. 4725), and although interested persons were afforded an opportunity to indicate a desire to be heard in the matter, no interested person notified the Hearing Clerk of a desire to be heard.

The Packers and Stockyards Division, Consumer and Marketing Service, by its attorney, filed an answer recommending that the petition be granted, and that the order to be issued remain in effect to and including November 30, 1966, unless modified or extended by further order before that date.

Since the parties are agreed, the respondent is authorized to modify the current temporary schedule of rates and charges as requested in the petition filed on March 17, 1965, and to assess such current schedule, as so modified, during the life of this order.