53 Agric. Dec. 1357 entered in a horse show. Administrative Law Judge James Hunt did find against a minor who actually trained the horse found to be sore. See Clifton Farley II and Betsy Farley, 49 Agric. Dec. 878 (1990). But Jennifer Wiley was not the horse's trainer. Under these circumstances, it cannot be found that Jennifer Wiley either "entered" or "allowed" the horse to be entered when sore. She had just turned 16 a few days before the horse show when a professional trainer in the exclusive control of her father presented the horse for pre-show inspection, the final step in the "entering" process. It would run against the current of the law to impute in these circumstances that she "allowed" the horse to be entered by her supposed agent: The rule is that as a minor may not make a contract, [s]he cannot establish the relation of master and servant or principal and agent and so cannot be held liable for the tort of another under the doctrine of respondeat superior, though [s]he may, aside from certain limits as to age and intelligence, be held liable for h[er] personal tort. Palmer v. Miller, 380 Ill. 256, 258, 43 N.E.2d 973, 975 (1942) [(emphasis added)]. To the same effect, see [P]ayette v. Fleischman, 329 Mich. 160, 161, 45 N.W.2d 16, 17 (1950); Thompson v. Bell, 129 F.2d 211, 214 (6th Cir. 1942); and Tatlock v Nathanson, 169 F. Supp. 151, 154 (D. Del. 1959). Nothing in Sims is relevant here. Respondent, as owner of "Velvet Holiday," had the legal and actual right to allow its entry by the Hamptons, or to forbid its entry in the show. He had the legal and actual right to order them not to use particular training methods, and not to sore the horse. The ALJ states (Initial Decision at 17): Mr. Jones also was not in the position of the typical owner to reap the benefits prestige, money, and recognition from winning with a sore horse. Mr. Jones did not intend to show the horse. He wanted to replace "Velvet Holiday," which was too fractious for his family's use. Although this point is not really relevant, Respondent Jones is an owner and stood to reap the rewards of winning. The expressed purpose of entering "Velvet Holiday" in the "Big Lick" competition was "to see how he did in competition" (Tr. 75). It is patently obvious that the horse's value would have adjusted up, or down, depending upon success or failure, respectively, in the ring. The part of the negotiations yet to be fixed was the price, and Respondent Jones was interested, as all owners are expected to be, in getting the best price. The ALJ cites Burton v. USDA, 683 F.2d 280, 282-83 (8th Cir. 1982), for the proposition that the statute is "not a per se statute" (Initial Decision at 13), by which I infer the ALJ means that the owner is not strictly liable under the statute for allowing his sore horse to be entered. Burton, however, does not help the ALJ's analysis, for two reasons. First, the Burton decision is not followed by this Department outside of the Eighth Circuit. The reasons for this are carefully explained in my Stamper decision, attached as an Appendix. The Stamper decision is very clear that owners are held strictly liable for allowing their horses to be entered while sore. But see Baird v. USDA, F.3d (No. 93-3975) (6th Cir. Nov. 10, 1994). Second, this case, sub judice, does not meet (any of) the Burton criteria: (1) there is no finding that the owner had no knowledge that the horse was in a sore condition; (2) there is no finding that the DQP examined and approved the horse prior to entry; and (3) there is no uncontradicted testimony that the owner had directed the Hamptons not to show the horse while sore. Since this case meets none of the Burton criteria, the owner of such a horse would have been found liable under Burton, even in the Eighth Circuit. Similarly, this case does not meet the criteria in Baird v. USDA, supra. For the foregoing reasons, the following Order should be issued. Order 1. Respondent Dennis Harold Jones is assessed a civil penalty of $2,000. The civil penalty shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded to Tejal Mehta, Esq., Office of the General Counsel, United States Department of Agriculture, Room 2014, South Building, Washington, D.C. 20250–1417, within 30 days from the date of service of this Order on Respondent. 2. Respondent Dennis Harold Jones is disqualified for 1 year from showing, exhibiting, or entering any horse, directly or indirectly through any 53 Agric. Dec. 1357 agent, employee, or other device, and from judging, managing or otherwise participating in any horse show, horse exhibition, or horse sale or auction. The provisions of the disqualification order shall become effective on the 30th day after service of this Order on Respondent. APPENDIX Excerpt from In re Stamper, 42 Agric. Dec. 20, 44–63 (1983), aff'd, 722 F.2d 1483 (9th Cir. 1984), reprinted in 51 Agric. Dec. 302 (1992). [Not published herein. - Editor] 1400 NONPROCUREMENT DEBARMENT AND SUSPENSION DEPARTMENTAL DECISIONS In re: LEON HOWARD, d/b/a HOWARD CONSTRUCTION. Decision and Order filed November 21, 1994. Nonprocurement debarment and suspension - Failure to file timely appeal. Judge Palmer refused to consider respondent's untimely appeal. The regulations require that respondent file an appeal within 30 days from the date that the debarring official's decision is received. Respondent did not file a timely appeal to the debarment decision. Accordingly, the decision of the Administrator to debar the respondent was deemed final and not appealable within the Department. Michael V. Dunn, Debarring Official. George F. West, Jr., Natchez, MS, for Appellant. Decision and Order issued by Victor W. Palmer, Chief Administrative Law Judge. Preliminary Statement This Decision and Order is issued pursuant to 7 C.F.R. § 3017.515, in disposition of Respondent's appeal of his debarment by the Farmers Home Administration (FmHA), an agency of the United States Department of Agriculture (USDA), under the governmentwide system for nonprocurement debarment and suspension as implemented by 7 C.F.R. §§ 3017.100-.515 (Regulations). These debarment proceedings were instituted by FmHA pursuant to 7 C.F.R. §§ 3017.100-.515. On February 7, 1994, suspending official Michael V. Dunn, Administrator of FmHA, issued a Notice of Suspension and Proposed Debarment to Respondent Leon Howard. The certified mail was received by Respondent on February 16, 1994. The notice set forth the government's reasons for taking such action and its consequences. FmHA informed Respondent that suspension was being imposed in accordance with 7 C.F.R. § 3017.405(a)(2) based upon adequate evidence that a cause for debarment may exist. Respondent was advised that debarment was being proposed pursuant to 7 C.F.R. § 3017.305(b)(1), which authorizes debarment for "[v]iolation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as: [a] willful failure to perform in accordance with the terms of one or more public agreements or 53 Agric. Dec. 1400 transactions"; 7 C.F.R. § 3017.305(b)(3), which authorizes debarment for "[a] willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction"; and 7 C.F.R. § 3017.305(d), which authorizes debarment for "[a]ny other cause of so serious or compelling a nature that it affects the present responsibility of a person." Respondent's suspension and debarment were based on the failure to follow FmHA regulations and refusal and noncompliance with the contractual and warranty agreements concerning construction defects on rural housing financed by FmHA. Respondent was informed that he had the right to submit information and argument in opposition to the proposed debarment within 30 days after the receipt of the notice of proposed debarment. In a letter dated February 16, 1994, Respondent informed FmHA that he was contesting the notice of suspension and proposed debarment and requested a hearing. Thereupon, by a certified letter which was received by Respondent on April 28, 1994, Respondent was notified that he would have 30 days in which to contact the FmHA State Director in order to arrange a mutually agreed upon time and place for an informal meeting to contest his suspension and proposed debarment. The letter further notified Respondent that he could submit information that contested his potential debarment during this 30 day period. FmHA had not been contacted by Respondent as of June 3, 1994. On June 7, 1994, Gary J. Morgan, Director, Program Support Staff, indicated that FmHA should prepare a Notice of Debarment concerning Respondent. On June 30, 1994, the Administrator of FmHA, Michael V. Dunn, issued a notice of debarment to Respondent, effective February 7, 1994, through February 6, 1996. The certified mail was received by Respondent on July 8, 1994. Pursuant to 7 C.F.R. § 3017.515(a) suspension and debarment decisions may be appealed to the Office of Administrative Law Judges: (a) If a decision to debar or suspend is made by a debarring or suspending official under § 3017.314 or § 3017.413, the respondent may appeal the decision to the Office of Administrative Law Judges (OALJ) by filing the appeal, in writing, to the Hearing Clerk. . . .The appeal must be filed within 30 days of receiving the decision and it must specify the basis of the appeal. . . . In a letter dated August 26, 1994, Respondent Leon Howard filed an appeal of the June 30, 1994, decision of the debarring official, Michael V. Dunn, Administrator, FmHA, which debarred Respondent from participating |