Cite as 24 A.D. 809 CONCLUSIONS By reason of the facts set forth in Finding of Fact 3 herein, respondent is insolvent within the meaning of the act (7 U.S.C. 204). By reason of the facts set forth in Findings of Fact 4, 5, 6 and 7 herein, 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) and 201.46 (a) of the regulations (9 CFR 201.43 (b) and 201.46(a)). Inasmuch as respondent has consented to the issuance of the order set forth below and complainant has recommended that such order be issued, the order will be issued. ORDER Respondent shall cease and desist from (1) operating as a dealer buying and selling livestock in commerce for his own account while his current liabilities exceed his current assets; (2) issuing checks in payment of livestock purchased in commerce without having and maintaining sufficient funds in the bank upon which they are drawn to pay such checks; and (3) failing to pay, when due, the purchase price of livestock purchased in commerce. Respondent shall keep such accounts, records, and memoranda as will fully and correctly disclose all transactions involved in his business under the act, including, among other things, a general ledger containing accounts showing his assets, liabilities, income, expenses, and net worth or capital; and an accurate record of the number and weight of livestock bought, sold, or otherwise disposed of each business day, and the prices paid or received therefor. 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 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. Cite as 24 A.D. 813 (No. 9902) In re G. C. MARTIN AND EMORY I. WHITEMIRE, d/b/a MARTINWHITMIRE CATTLE COMPANY. P&S Docket No. 3442. Decided June 18, 1965. Bonding requirements-Failure to pay when due-Checks-RecordsInsolvency-Suspension of registration-Default-Consent Respondents are ordered to cease and desist from engaging in business under the act without the required bond, failing to pay when due for purchased livestock and issuing insufficient funds checks in payment of purchased livestock, are ordered to keep records that fully disclose all transactions in their business under the act and are suspended as registrants under the act for a period of 30 days and thereafter until no longer insolvent. Mr. Garrett N. Wyss for complainant. Edenfield, Heyman & Sizemore, Atlanta, Ga., for respondent G. C. Martin. Mr. Jack W. Bain, 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 December 18, 1964, by the Director, Packers and Stockyards Division, Agricultural Marketing Service (presently the Consumer and Marketing Service), United States Department of Agriculture. Each respondent is registered with the Secretary under the act as a dealer to buy and sell livestock in commerce for his own account and respondents are charged with operating as a livestock dealer partnership in commerce without filing and maintaining a reasonable bond or its equivalent, failing to pay, when due, the purchase price of livestock purchased in commerce, issuing checks in purported payment for livestock purchased in commerce, which checks were returned unpaid by the bank upon which they were drawn because of insufficient funds in respondents' account, and failing to keep adequate records. Each respondent was also charged with failing to meet the financial requirements of the act. A copy of the complaint and a copy of the rules of practice were served upon each respondent. At the time of service of the complaint respondents were notified in writing that answers thereto should be filed within 20 Cite as 24 A.D. 813 days after such service and that, in accordance with section 202.9 of the rules of practice (9 CFR 202.9), failure to file an answer would constitute an admission of the facts alleged in the complaint, and in effect, a waiver of oral hearing. Notwithstanding such notice, respondent Whitmire has not filed an answer. The matter with respect to this respondent was referred to Jack W. Bain, Hearing Examiner, Office of Hearing Examiners, United States Department of Agriculture, for the preparation of a report without further investigation or hearing pursuant to section 202.9 (c) of the rules of practice. On May 19, 1965, the hearing examiner filed a report recommending that respondent Whitmire be found to have violated the act as charged, be ordered to cease and desist from such violations and to keep adequate records and be suspended as a registrant under the act for a period of 30 days and thereafter until he demonstrates that he meets the financial requirements of the act. Respondent Whitmire did not file exceptions to the hearing examiner's report. Respondent Martin filed an amended answer in which he, in part, consented to the issuance of the order herein containing findings of fact and conclusions based upon the allegations of the complaint. FINDINGS OF FACT 1. Respondent Emory I. Whitmire is an individual whose address is Gainesville, Georgia. This respondent is now and was at all times mentioned herein registered with the Secretary under the act as a dealer to buy and sell livestock in commerce for his own account. 2. Respondent G. C. Martin is an individual whose address is Gainesville, Georgia. This respondent is now and was at all times mentioned herein registered with the Secretary under the act as a dealer to buy and sell livestock in commerce for his own account. 3. The Toccoa Livestock Auction stockyard, Toccoa, Georgia, the McClure-Burnett Commission Company stockyard, Atlanta, Georgia, the Tri-County Livestock Auction Company stockyard, Social Circle, Georgia, the Duvall & Wheeler Livestock Barn stockyard, Greensboro, Georgia, Wilkes County Stockyard, Washington, Georgia, and the North Georgia Livestock Auction, Inc. stockyard, Athens, Georgia, were at all times material herein posted stockyards subject to the provisions of the act. 4. During the period June 18 through August 12, 1964, respondents G. C. Martin and Emory I. Whitmire, as partners doing business as Martin-Whitmire Cattle Company, operated as a live Cite as 24 A.D. 813 stock dealer under the act, buying livestock in commerce for the partnership account at the stockyards on 11 separate days, without filing and maintaining a reasonable bond or its equivalent to cover such dealer operations. 5. Respondent Emory I. Whitmire's current liabilities exceed his current assets. As of September 16, 1964, his current liabilities exceeded his current assets by approximately $2,075. 6. Respondent G. C. Martin's current liabilities exceed his current assets. As of September 16, 1964, his current liabilities exceeded his current assets by approximately $7,600. 7. During the period June 25 through August 12, 1964, in 10 separate transactions, respondents G. C. Martin and Emory I. Whitmire, doing business as Martin-Whitmire Cattle Company, purchased at least 185 head of livestock at the stockyards and failed to pay, when due, the purchase prices of such livestock. 8. During the period June 25 through July 28, 1964, respondents G. C. Martin and Emory I. Whitmire, doing business as Martin-Whitmire Cattle Company, issued 8 checks in the total amount of $12,123.90 in purported payment for livestock purchased at the stockyards, which checks were returned unpaid by the bank upon which they were drawn because of insufficient funds in respondents' account. 9. During the period March 1, 1963, to September 16, 1964, respondents G. C. Martin and Emory I. Whitmire, doing business as Martin-Whitmire Cattle Company, failed to keep accounts, records, and memoranda which fully and correctly disclosed all transactions involved in their business as a dealer under the act, including a general ledger of accounts showing assets, liabilities, income, expenses, and net worth, a cash receipts and disbursements journal, an accounts receivable ledger, an accounts payable ledger, and monthly reconciliations of bank accounts. CONCLUSIONS By reason of the facts set forth in Findings of Fact 5 and 6, each respondent is insolvent within the meaning of the Act of Congress approved July 12, 1943 (7 U.S.C. 204). See, e.g., In re Southern Buyers, Inc., 14 A. D. 811 (1955); In re Kenneth P. Williams, 21 A.D. 1429 (1962); In re Martin Livestock Sales, Inc., 21 A.D. 1211 (1962). Respondents' operation in business as a dealer under the act without a reasonable bond or its equivalent constitutes a willful violation of section 312 (a) of the act (213(a)) and sections 201.29 and 201.30 of the regulations issued thereunder (9 CFR 201.29 and 201.30). See e.g., In re Cite as 24 A.D. 813 W. O. Steen, 16 A.D. 125 (1957). Respondents also willfully violated such section of the act and section 201.43 (b) of the regulations issued thereunder (9 CFR 201.43 (b)) by reason of the facts set forth in Findings of Fact 7 and 8. See, e.g., In re Dean Spencer, 22 A.D. 1151 (1963); In re Carey Bunn, 22 A.D. 1069 (1963). Also, by reason of the facts set forth in Finding of Fact 9 respondents violated section 401 of the act (7 U.S.C. 221). Respondents should be ordered to cease and desist from the violations of section 312 (a) of the act found herein and to keep accounts, records and memoranda which fully disclose all transactions involved in their business under the act and be suspended as registrants under the act for a period of 30 days and thereafter until each respondent is no longer insolvent, as recommended by complainant. ORDER Respondents G. C. Martin and Emory I. Whitmire, individually and as partners doing business as Martin-Whitmire Cattle Company, 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 to cover such operations, as required by the act and the regulations, failing to pay, when due, the purchase price of livestock purchased in commerce, and issuing checks in payment for livestock purchased in commerce without having and maintaining sufficient funds on deposit in the bank upon which they are drawn to pay such checks. Respondents G. C. Martin and Emory I. Whitmire, individually and as partners doing business as Martin-Whitmire Cattle Company, shall keep accounts, records, and memoranda which fully and correctly disclose all transactions involved in their business under the act, including a general ledger of accounts showing assets, liabilities, income, expenses, and net worth, a cash receipts and disbursements journal, an accounts receivable ledger, an accounts payable ledger, and monthly reconciliations of bank accounts. Respondents G. C. Martin and Emory I. Whitmire, individually and as partners doing business as Martin-Whitmire Cattle Company, are suspended as registrants under the act for a period of 30 days and thereafter until they demonstrate that they are no longer insolvent. When a respondent herein has demonstrated that he is no longer insolvent, a supplemental order will be issued |