Cite as 24 A.D.

2. The Spencer Live Stock Exchange Co., Inc. stockyard, Spencer, West Virginia, the Jackson County Livestock Market, Inc. stockyard, Ripley, West Virginia, Buckhannon Stockyards, Buckhannon, West Virginia, and Ritchie County Livestock Sales Co., Inc., stockyard, Lamberton, West Virginia, hereinafter called the stockyards, were at all times material herein posted stockyards subject to the provisions of the act.

3. Respondent's surety bond was terminated on April 4, 1964. Respondent, on or about March 13, 1964, was notified of such termination date and was informed that he would have to furnish a new bond if he continued to operate as a livestock dealer in commerce after April 4, 1964. Notwithstanding such notice, respondent has continued to engage in the business of a livestock dealer in commerce, buying and selling livestock at the stockyards, without filing and maintaining a reasonable bond or its equivalent, as required by the act and the regulations thereunder.

4. Respondent's current liabilities exceed his current assets. As of October 9, 1964, respondent's current liabilities exceeded his current assets by approximately $4,000.

5. On or about the dates and in the transactions set forth below, respondent purchased livestock in commerce for his own account, and failed to pay, when due, the full purchase price of such livestock.

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

7. Respondent, during the period from January 1, 1964, until October 9, 1964, failed to keep such accounts, records, and memoranda as fully and correctly disclose all transactions involved in his business as a dealer under the act, including (a) a general ledger of accounts showing assets, liabilities, income, expenses, and net worth, (b) a purchase and sales journal showing the number of head, weight, price and related expenses, of all livestock bought, sold or otherwise disposed of each business day, (c) monthly reconciliations of bank accounts, and (d) cash receipts and disbursements journals.

CONCLUSIONS

By reason of Finding of Fact 4, the respondent's financial condition does not meet the requirements of the act (7 U.S.C. 204).

By reason of Findings of Fact 3, 5, 6 and 7, the respondent has willfully violated sections 312 and 401 of the act (7 U.S.C. 213, 221) and sections 201.29, 201.30 and 201.43 of the regulations (9 CFR 201.29, 201.30 and 201.43).

PROPOSED ORDER

Respondent shall cease and desist from: (1) engaging in business, in commerce, in any capacity for which bonding is required under the act and the regulations, without filing and maintaining a reasonable bond or its equivalent, as required by the act and the regulations; (2) failing to pay, when due, the full purchase price of livestock purchased in commerce; and (3) issuing checks in payment for livestock purchased in commerce without having

Cite as 24 A.D. 594

and maintaining sufficient funds on deposit in the bank upon which they are drawn to pay such checks.

Respondent shall keep and maintain such accounts, records, and memoranda as will fully and correctly disclose all transactions involved in his business as a dealer under the act, including: (1) a general ledger including accounts showing assets, liabilities, income, expenses and net worth; (2) a purchase and sales journal showing the number of head, weight, price and related expenses, of all livestock bought, sold, or otherwise disposed of each business day; (3) monthly reconciliations of bank accounts, and; (4) cash receipts and disbursements journals.

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 and complies fully with the bonding requirements of the act and the regulations. When respondent demonstrates that he is no longer insolvent and has complied fully with the bonding requirements of the act and the regulations, a supplemental order will be issued in this proceeding terminating such suspension after the 30-day period.

Copies hereof shall be served upon the parties and this order shall become effective on the sixth day after service hereof upon the respondent.

(No. 9816)

In re EMPIRE LIVESTOCK MARKETING COOPERATIVE, INC. P&S
Docket No. 3090. Decided May 14, 1965.

Market agency-False weighing-Suspension of registration-Scale
tickets-Records

Respondent is ordered to cease and desist from weighing livestock at other than true and correct weights ascertained in accordance with weighing regulations, issuing scale tickets showing such false weights and selling livestock and paying consignors on basis of such false weight, is ordered to issue scale tickets in accordance with the regulations issued under the act and to keep records that correctly disclose the weighing of livestock and is suspended as a registrant under the act for a period of 20 days which suspension is held in abeyance except with respect to its operations at its stockyard at Watertown, New York.

Mr. Ronald D. Cipolla for complainant. Bryant & Mazza, Ithaca, New York, for respondent. Mr. Jack W. Bain, Hearing Examiner.

Decision by Thomas J. Flavin, Judicial Officer

Cite as 24 A.D. 594

PRELIMINARY STATEMENT

This is a disciplinary proceeding under the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.). The complaint charges that the respondent, Empire Livestock Cooperative, Inc., of Ithaca, New York, underweighed livestock at its Watertown, New York stockyard on November 18, 1963, in specified instances and in divers similar transactions from February 26, 1962 through November 18, 1963. The complaint also alleges that the respondent issued scale tickets showing weights less than the true and correct weights, kept copies of these scale tickets in its records and paid consignors of livestock upon the basis of the incorrect weights.

The complaint charges additionally that respondent issued scale tickets which failed to show the names of the buyer and the consignor, the number of head and kind of livestock and the name or initials of the person who weighed the livestock.

The respondent filed an answer denying the short weighing and claiming that it had been given permission by a representative of the complainant to use the scale tickets alleged in the complaint to be deficient.

An oral hearing was held before Hearing Examiner Jack W. Bain, Office of Hearing Examiners, United States Department of Agriculture, in Watertown, New York, on May 12 and 13, 1964. Ronald D. Cipolla, Office of the General Counsel, Department of Agriculture, appeared as counsel for complainant. Frederick B. Bryant, of Bryant and Mazza, Attorneys at Law, Ithaca, New York, appeared for respondent. Complainant called seven witnesses and identified 12 exhibits, seven of which were received in evidence, one was withdrawn, and objection was sustained to four. Respondent called four witnesses and identified 26 exhibits, of which two were not offered and 24 were received. After the hearing the parties filed suggested findings and briefs, both recommending a cease and desist order, and complainant recommending a 30-day suspension of respondent's registration in addition, but suspended except as to respondent's Watertown, New York stockyard. The hearing examiner issued a recommended decision finding that respondent violated the act substantially as charged and proposing the order suggested by complainant. The respondent filed exceptions to the hearing examiner's report and oral argument upon the exceptions was held before the Judicial Officer on March 23, 1965, in Washington, D. C.

Cite as 24 A.D. 594

FINDINGS OF FACT

1. The respondent, Empire Livestock Marketing Cooperative, Inc., is a New York corporation whose address is Savings Bank Building, Ithaca, New York. It is, and at all times material herein was, a market agency registered under the act to buy and sell livestock in commerce on commission.

2. Respondent owns and operates, and at all times material herein owned and operated, the Empire Livestock Marketing Cooperative, Inc. stockyards at Bath, Bullville, Caledonia, Dryden, Gouverneur, Lancaster, Oneonta, and Watertown, New York, all of which are, and were at all times material herein, posted as subject to the act.

3. At all times material herein, livestock sold at its stockyards by respondent were sold at auction by weight on a commission basis; sale weights were determined by weighing on scales owned by respondent and operated by employees of respondent; the weights were recorded on scale tickets by automatic printing devices on the scales at the Bath, Caledonia, and Lancaster stockyards, and manually by respondent's employees at its other stockyards, including that at Watertown; copies of the scale tickets were made parts of respondent's accounts and records; the weights ascertained and recorded on the scale tickets determined the amounts the purchasers paid to respondent for the livestock and the amounts respondent paid to the consignors of the livestock.

4. The scale used for the weighing here involved at respondent's Watertown stockyard was a Howe Dial Scale, not equipped with a printer, having a 3,200-pound capacity, a dial capacity of 2,000 pounds, and minimum graduations of 5 pounds; and when properly balanced it was accurate.

5. At all times material herein, Raymond V. Hemming was respondent's general manager; and at its Watertown stockyard Merlin C. Cable was its market manager, Thomas Oberton was its barn manager, Halley Crowe was its auctioneer, and Clifton G. LaLone was its weighmaster.

6. On August 8, 1960, Kenneth F. Grizzell, then a District Supervisor for complainant, wrote Mr. Hemming that a complaint had been received that livestock was not being weighed to the nearest scale graduation at one of respondent's stockyards, stated that the act and regulations thereunder require accurate weighing to the nearest graduation, and expressed the hope that Mr. Hemming would help to eliminate the practice complained of.