Cite as 24 A.D. 775 the payment of lawful marketing charges and the remittance of net proceeds to shippers, thereby endangering or impairing the faithful and prompt accounting therefor and payment of the portions thereof due the owners or consignors of livestock in that: (a) As of October 31, 1964, respondent had outstanding checks issued to consignors of livestock in the amount of $65,202.81, and had with which to offset such outstanding checks, a bank balance in its custodial account of $3.66, plus deposits in transit of $57,544.99 and current proceeds receivable of $1,519.00, resulting in a deficit of $6,135.16 in funds available to pay shippers' proceeds; (b) As of February 28, 1965, respondent had outstanding checks issued to consignors of livestock in the amount of $95,065.71, and had with which to offset such outstanding checks, a bank balance in its custodial account of $13,227.81, plus deposits in transit of $20,861.41, and current proceeds receivable of $16,568.84, resulting in a deficit of $44,331.52 in funds available to pay shippers' proceeds. 4. Respondent, during the period from October 31, 1964 through February 28, 1965, operated as a market agency within the meaning of that term as used in the Act, notwithstanding that during such period its current liabilities exceeded its current assets. 5. Respondent, at the stockyard, on or about the dates set forth below and in connection with the weekly auction sale conducted at the stockyard, permitted an employee, the ringman, Mike Thomas, d/b/a Thomas Cattle Co., to purchase livestock for his own account, which livestock had been consigned to respondent for sale on a commission basis. Cite as 24 A.D. 775 CONCLUSIONS By reason of the facts set forth in Finding of Fact 2 herein, respondent is insolvent within the meaning of the Act (7 U.S.C. 204). By reason of the facts set forth in Finding of Fact 3 herein, respondent has wilfully violated sections 307 and 312(a) of the Act (7 U.S.C. 208, 213 (a)) and sections 201.40, 201.41 and 201.42 of the regulations (9 CFR 201.40, 201.41, 201.42). By reason of the facts set forth in Finding of Fact 4 herein, respondent has wilfully violated sections 307 and 312(a) of the Act, supra. By reason of the facts set forth in Finding of Fact 5 herein, respondent has wilfully violated sections 307 and 312 (a) of the Act, supra, and section 201.57 (a) of the regulations (9 CFR 201.57 (a)). Inasmuch as 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) using funds received as proceeds from the sale of livestock on a commission basis for purposes of its own and purposes other than the payment of lawful marketing charges and the remittance of net proceeds to shippers; (2) operating as a market agency while in an insolvent financial condition; and (3) permitting respondent's ringman, or other employees whose duties in connection with the selling of livestock by auction involve the making of determinations or decisions directly affecting the interest of consignors, to purchase for any purpose for their own account livestock consigned to respondent for sale on a commission basis. Respondent shall deposit the gross proceeds received from the sale of livestock on a commission basis in a separate bank account designated as "custodial account for shippers' proceeds," or by some similar identifying designation, and shall maintain such account in conformity with the provisions of section 201.42 of the regulations (9 CFR 201.42). Respondent is suspended as a registrant under the Act for a period of 21 days and thereafter until it demonstrates that it is no longer insolvent. When the 21 day period has expired and Cite as 24 A.D. 779 respondent has demonstrated that it is no longer insolvent, a supplemental order will be issued in this proceeding terminating this suspension. This order shall become effective on the sixth day after service upon respondent. Copies hereof shall be served upon the parties. (No. 9886) In re DELL LEMING, DANE WALKER AND DONAVON TURLEY, d/b/a DELL LEMING CATTLE COMPANY. P&S Docket No. 2647. Decided June 3, 1965. Suspension of Donavon Turley terminated Decision by Thomas J. Flavin, Judicial Officer SUPPLEMENTAL ORDER In this disciplinary proceeding under the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et seq.), an order was issued October 3, 1962, suspending the respondents as registrants under the Act for 30 days and thereafter until they demonstrate that they are no longer insolvent. Complainant has filed a recommendation stating that it appears from further investigation that respondent Turley is solvent and that he and the other respondents herein are no longer operating as partners, and recommending that a supplemental order be issued terminating the suspension of respondent Donavon Turley as a registrant under the Act. Accordingly, the suspension of respondent Turley as a registrant under the Act in the order of October 3, 1962, is hereby terminated. Such order shall remain in full force and effect in all other respects. Copies hereof shall be served upon the parties. Cite as 24 A.D. 780 (No. 9887) In re LEONARD MCDANIEL. P&S Docket No. 3405. Decided June 3, 1965. Prior order amended Decision by Thomas J. Flavin, Judicial Officer SUPPLEMENTAL ORDER In this proceeding under the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et seq.), an order was issued on February 10, 1965, in part, suspending respondent as a registrant under the Act until he demonstrates that he is no longer insolvent. Complainant has recommended that such suspension be held in abeyance to permit respondent to obtain employment with another registrant, provided that respondent does not operate in any capacity for which registration is required under the Act and in which he would incur personal financial obligation, until he has demonstrated that he is no longer insolvent. Accordingly, the suspension of respondent as a registrant under the Act contained in the order of February 10, 1965, is hereby held in abeyance provided that respondent shall not operate in any capacity for which registration is required under the Act and in which he would incur personal financial obligation, until he has demonstrated that he is no longer insolvent. The order of February 10, 1965, shall remain in full force and effect in all other respects. (No. 9888) In re MODESTO MEAT COMPANY. P&S Docket No. 3543. Decided June 4, 1965. Packer-Purchasing while insolvent-Failure to pay when due Cease and desist-Consent Respondent is ordered to cease and desist from purchasing livestock in commerce while its current liabilities exceed its current assets without paying for such livestock at the time of purchase, and from purchasing livestock in commerce and failing to pay the seller of the livestock or his duly authorized agent the full amount of the purchase price of such livestock when payment is due. Cite as 24 A.D. 780 Mr. Jerome S. Ducrest for complainant. Respondent 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 (7 U.S.C. 181 et seq.). The Complaint filed by the Director, Packers and Stockyards Division, Consumer and Marketing Service, charges respondent with various violations of the Act and the regulations. In its answer respondent admits the jurisdictional allegations in the Complaint and submits to the jurisdiction of the Secretary in the matter, 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 upon the allegations contained in the Complaint. Complainant has recommended that the order consented to by respondent be issued. FINDINGS OF FACT 1. Respondent, whose mailing address is P. O. Box 873, Modesto, California, is a corporation organized and existing under the laws of the State of California with its principal office and place of business located at Modesto, California. At all times material herein respondent was a packer within the meaning of the Act, engaged in the business of buying livestock for slaughter and slaughtering livestock and manufacturing and preparing meat and meat food products for sale or shipment in commerce. 2. Respondent in 10 specified transactions on or about 9 different dates during the month of February 1965, and in other similar transactions at divers other times during said month purchased livestock in commerce for slaughter purposes while its current liabilities exceeded its current assets without paying for such livestock at the time of purchase. 3. Respondent, in commerce, in 28 specified transactions on or about 28 different dates during the period from March 1, 1964, through March 31, 1965, and in other similar transactions at divers other times during said period purchased livestock for slaughter purposes, and failed to pay the seller of the livestock or his duly authorized agent the full amount of the purchase price of such livestock when payment was due. |