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Cite as 24 A.D. 622

(No. 9823)

In re A. C. SMITH. P&S Docket No. 3391. Decided May 19, 1965.

Bonding requirements-Cease and desist-Default

Respondent is ordered to cease and desist from engaging in business under the act in any capacity for which bonding is required without filing and maintaining a reasonable bond or its equivalent, as required by the act and the regulations issued thereunder.

Mr. Garrett N. Wyss for complainant. Mr. Will Rogers, Hearing Examiner.

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.), instituted by a complaint filed October 14, 1964, by the Director, Packers and Stockyards Division, Agricultural Marketing Service (presently the Consumer and Marketing Service), United States Department of Agriculture, charging the respondent with violating § 312(a) of the act (7 U.S.C. 213(a)) and §§ 201.29 and 201.30 of the regulations issued thereunder (9 CFR 201.29 and 201.30). It is alleged in the complaint that notwithstanding written notice to respondent on or about April 21 and June 3, 1964, that increased bond or bond equivalent coverage was required, the respondent has continued to operate as a market agency in commerce without furnishing the required increased bond or bond equivalent coverage.

Respondent filed an answer to the complaint in which he admits some of the allegations of the complaint and neither admits nor denies the remaining allegations. Respondent's failure to specifically admit, deny, or explain certain allegations of the complaint constitutes an admission of each such allegation, as set forth in the rules of practice (9 CFR 202.9 (b)). Accordingly, the matter was referred to Will Rogers, Hearing Examiner, Office of Hearing Examiners, United States Department of Agriculture, for the preparation of a report without further investigation or hearing pursuant to § 202.9 (c) of the rules of practice (9 CFR 202.9 (c)). On April 16, 1965, the hearing examiner filed a report recommending that respondent be found to have violated the act as charged, be ordered to cease and desist from such violation and be suspended as a registrant under the act until he fully

Cite as 24 A.D. 622

complies with the bonding requirements of the act and the regulations issued thereunder. On May 7, 1965, complainant recommended that no suspension be ordered in this proceeding as respondent is presently in compliance with the bonding requirements of the act and the regulations issued thereunder. No exceptions to the hearing examiner's report were filed.

FINDINGS OF FACT

1. Respondent, A. C. Smith, is an individual whose address is P. O. Box 213, Frost, Texas. Respondent is now and was at all times material herein engaged in business as a market agency buying livestock in commerce on a commission basis and is now and was at all times material herein registered with the Secretary under the act as a dealer and as a market agency buying livestock in commerce on a commission basis.

2. The Leggott Livestock Auction stockyard, Waco, Texas, was at all times material herein a posted stockyard subject to the provisions of the act.

3. During the period March 4, 1963, to October 14, 1964, respondent maintained a trust fund in the amount of $5,000 to secure performance of the obligations incurred by reason of his livestock transactions.

4. On the basis of the volume of respondent's livestock transactions during the year ending December 31, 1963, respondent was required, under the act and the regulations, to increase to $10,000 the amount of the bond or bond equivalent maintained by him to secure performance of his obligations thereunder. On or about April 21 and June 3, 1964, respondent was notified in writing regarding such required increased bond or bond equivalent coverage. Notwithstanding said notices, respondent continued to operate as a market agency in commerce without furnishing the required increased bond or bond equivalent coverage.

CONCLUSIONS

Respondent's operation in business under the act without an adequate bond or its equivalent, as set forth in Finding of Fact 4, constitutes a violation of § 312 (a) of the act (7 U.S.C. 213 (a)) and §§ 201.29 and 201.30 of the regulations issued thereunder (9 CFR 201.29 and 201.30). See, e.g., In re Isom Martin, 8 A.D. 1247 (1949); In re Mart (Bill) White, 23 A.D. 1104 (1964).

Cite as 24 A.D. 624

Respondent should be ordered to cease and desist from the violation of § 312(a) of the act found herein, as recommended by complainant.

ORDER

Respondent shall cease and desist from engaging in business in commerce under the act in any capacity for which bonding is required by the act and the regulations issued thereunder without filing and maintaining a reasonable bond or its equivalent, as required by the act and the regulations issued thereunder.

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

(No. 9824)

In re R. B. REDIN. P&S Docket No. 3474. Decided May 21, 1965.

Bonding requirements-Suspension of registration-Consent

Respondent is ordered to cease and desist from engaging in business under the act without the required bond and is suspended as a registrant until he complies with the bonding requirements of the act and the regulations issued thereunder.

Mr. Samuel J. Harris for complainant. Mr. Chuck Goodwin, Anadarko, Oklahoma, 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 3, 1965, by the Director, Packers and Stockyards Division, United States Department of Agriculture, charging that respondent violated the bonding provisions of the Act and the regulations thereunder (9 CFR 201.1 et seq.).

On April 26, 1965, respondent filed an 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

Cite as 24 A.D. 624

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.

FINDINGS OF FACT

1. Apache Livestock Sale stockyard, Apache, Oklahoma, Surber Auction Sale stockyard, Chickasko, Oklahoma, and Caddo County Livestock Commission Company stockyard, Anadarko, Oklahoma, hereinafter called the stockyards, are now, and were at all times material herein, posted stockyards subject to the provisions of the Act.

2. Respondent, an individual, whose address is 508 East Virginia Avenue, Anadarko, Oklahoma, is now, and was at all times material herein engaged in the business of a dealer within the meaning of the Act, 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. The surety bond which respondent maintained to secure performance of his dealer obligations was terminated. By letters dated November 4, 1963, December 5, 1963, and April 21, 1964, the area supervisor, Packers and Stockyards Division, United States Department of Agriculture, for the area that includes the State of Oklahoma, notified respondent of such termination and informed him that he would have to furnish the required bond if he continued to engage in business as a livestock dealer in commerce after such termination. Notwithstanding such notices, respondent continued to engage in the business of a dealer, buying and selling livestock at the stockyards for his own account, without filing and maintaining a reasonable bond or its equivalent, as required by the Act and the regulations thereunder.

CONCLUSIONS

By reason of the facts set forth in Finding of Fact 3, it is concluded that respondent has wilfully violated section 312(a) of the Act (7 U.S.C. 213 (a)) and sections 201.29 and 201.30 of the regulations (9 CFR 201.29 and 201.30).

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

Cite as 24 A.D. 626

ORDER

Respondent shall cease and desist from engaging in business 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 thereunder.

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

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

(No. 9825)

In re LEONARD LINSMEIER AND CHARLES F. LINSMEIER, d/b/a LINSMEIER LIVESTOCK AUCTION & d/b/a LINSMEIER LIVESTOCK. P&S Docket No. 3513. Decided May 24, 1965.

Market agency-Shippers' proceeds-Consignment proceeds checksInsolvency-Suspension of registration-Consent

Respondents are ordered to cease and desist from using shippers' proceeds for unauthorized purposes, issuing insufficient funds consignment proceeds checks and operating as a market agency while insolvent, are ordered to establish a separate account for shippers' proceeds and are suspended as registrants under the act for a period of 15 days and thereafter until no longer insolvent.

Mr. Samuel J. Harris for complainant. Respondents pro se.

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 April 21, 1965, by the Director, Packers and Stockyards Division, United States Department of Agriculture, charg

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