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suppliers: Maine Frozen Foods; Paris Foods Corporation; Endico Potatoes, Inc.; and Reddy Raw, Inc. (CARX 2 at 5-6; Tr. 51-52). Petitioner was the buyer of, or was responsible for buying, in or about June 1999, one lot of frozen mixed vegetables for which Maine Frozen Foods was not promptly paid $12,542.40, in violation of section 2(4) of the PACA (7 U.S.C. § 499b(4)). Petitioner was the buyer of, or was responsible for buying, in or about September 1999 through November 1999, four lots of frozen mixed vegetables for which Paris Foods Corporation was not promptly paid $36,344.40, in violation of section 2(4) of the PACA (7 U.S.C. § 499b(4)). Petitioner was the buyer of, or was responsible for buying, in or about October 1999 through November 1999, 16 lots of frozen potatoes for which Endico Potatoes, Inc. was not promptly paid $29,610.43, in violation of section 2(4) of the PACA (7 U.S.C. § 499b(4)). Petitioner was the buyer of, or was responsible for buying, in or about November 1999 through December 1999, 10 lots of frozen mixed fruits and vegetables for which Reddy Raw, Inc. was not promptly paid $48,907.35, in violation of section 2(4) of the PACA (7 U.S.C. § 499b(4)). (CARX 2 at 5-6; Tr. 51-52.) Petitioner's purchase of, or responsibility for the purchase of, these 31 lots of frozen foods is active involvement in activities that resulted in Jacobson Produce, Inc.'s failures to pay for perishable agricultural commodities in willful, repeated, and flagrant violation of section 2(4) the PACA (7 U.S.C. § 499b(4)).

Moreover, Petitioner did not demonstrate by a preponderance of the evidence that her participation in the purchase of frozen foods was limited to the performance of ministerial functions only. To the contrary, the record establishes Petitioner was the manager of the frozen foods department and either purchased or was responsible for the purchase of frozen foods during the period that Jacobson Produce, Inc. violated the PACA. Petitioner, as a buyer for and manager of Jacobson Produce, Inc.'s frozen foods department, decided whether to make purchases of frozen foods on behalf of Jacobson Produce, Inc. and chose to do so even though she knew or should have known that Jacobson Produce, Inc. was not paying produce suppliers for perishable agricultural commodities in accordance with the PACA.3

3Petitioner asserts she was not aware of Jacobson Produce, Inc.'s PACA violations (Appeal Pet. at 2). I disagree. I find Petitioner knew or should have known Jacobson Produce, Inc. was not paying produce sellers for perishable agricultural commodities based on the loan Petitioner made to Jacobson Produce, Inc. in July or August 1999, in order to pay Jacobson Produce, Inc.'s bills (Tr. 133-37, 148, 151-54, 165) and the telephone calls Petitioner received from produce sellers requesting payment that was due and owing from Jacobson Produce, Inc. for perishable agricultural commodities (Tr. 145-46, 148, 162-63). Moreover, even if I found Petitioner did not know or have (continued...)

Petitioner asserts frozen foods accounted for less than 18 percent of Jacobson Produce, Inc.'s business; Petitioner was never an officer or director of Jacobson Produce, Inc.; Petitioner had no authority to hire or fire Jacobson Produce, Inc.'s employees; Petitioner had no authority to engage professionals; and Petitioner had no authority to secure insurance on behalf of Jacobson Produce, Inc. (Appeal Pet. at 2).

I agree with Petitioner. However, Petitioner's limited authority within Jacobson Produce, Inc. does not, by itself, demonstrate that she was not actively involved in activities that resulted in Jacobson Produce, Inc.'s violations of the PACA. The issue of limited authority is addressed in Norinsberg, as follows:

I do not agree that an alleged responsibly connected individual's demonstration by a preponderance of the evidence that he or she had very limited corporate authority would, by itself, demonstrate that he or she was not actively involved in activities that resulted in a violation of the PACA. An individual who exercises authority over only one limited area of corporate activities could be responsibly connected due to his or her active involvement in activities resulting in a violation of the PACA.

In re Michael Norinsberg, 58 Agric. Dec. 604, 615 (1999) (Decision and Order on Remand).

Petitioner was the buyer of produce or responsible for buying produce for which Jacobson Produce, Inc. failed to make prompt payment in accordance with the PACA. Therefore, despite the limits on Petitioner's authority within Jacobson Produce, Inc. she was actively involved in an activity resulting in Jacobson Produce, Inc.'s violations of the PACA.

Petitioner asserts she had no authority to pay bills and did not participate in any management decisions (Appeal Pet. at 2).

The record does not support Petitioner's assertion that she had no authority to pay bills. To the contrary, the record establishes that she was a signatory on one Jacobson Produce, Inc. bank account and authorized to sign checks if Aaron Gisser were not available (CARX 7; Tr. 125-26). Moreover, the record does not support Petitioner's assertion that she did not participate in any management

3(...continued)

reason to know that Jacobson Produce, Inc. was not paying produce sellers for perishable agricultural commodities in accordance with the PACA, I would still find that she was actively involved in activities resulting in Jacobson Produce, Inc.'s violations of the PACA. See In re Michael Norinsberg, 58 Agric. Dec. 604, 617 (1999) (Decision and Order on Remand).

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decisions. Instead, while the record establishes that Petitioner did not exercise control over Jacobson Produce, Inc. as a whole, Petitioner was the manager of Jacobson Produce, Inc.'s frozen foods department (AX 1, CARX 7, CARX 8; Tr. 149).

Petitioner asserts "[t]he activity that resulted in violation of the PACA by Jacobson consisted solely in not promptly paying for produce that had been purchased and received. Purchasing produce is not a violation of the PACA, only failing to pay promptly." (Appeal Pet. at 2 (emphasis in original).)

I agree with Petitioner's assertions that Jacobson Produce, Inc.'s purchases of perishable agricultural commodities during June 1999 through January 2000 were not violations of the PACA and that Jacobson Produce, Inc. violated section 2(4) of the PACA (7 U.S.C. § 499b(4)) when it failed to make full payment promptly for perishable agricultural commodities purchased, received, and accepted in interstate and foreign commerce during June 1999 through January 2000. However, I reject what I find to be Petitioner's argument: that in order to be actively involved in the activities resulting in a PACA licensee's violation of the PACA, a petitioner must actually commit the PACA violation.

A petitioner's failure to make full payment promptly is not the only activity that can result in a PACA licensee's failure to make full payment promptly in accordance with the PACA. For example, a petitioner's embezzlement or theft of funds from a PACA licensee is an activity that could leave the PACA licensee unable to make full payment promptly in accordance with the PACA. In such a case, a petitioner's embezzlement or theft of funds from the PACA licensee would constitute active involvement in an activity resulting in the PACA licensee's violation of section 2(4) of the PACA (7 U.S.C. § 499b(4)), but the petitioner would not have actually committed the act of failing to make full payment promptly in violation of section 2(4) of the PACA (7 U.S.C. § 499b(4)).

In Norinsberg, I specifically addressed the issue presented in the instant proceeding, a petitioner's purchase of perishable agricultural commodities resulting in a PACA licensee's failure to pay in accordance with the PACA, as follows:

Thus, if a petitioner buys produce from a seller who is not paid by the partnership, corporation, or association, in accordance with the PACA, the petitioner is actively involved in an activity resulting in a violation of the PACA....

In re Michael Norinsberg, 58 Agric. Dec. 604, 617 (1999) (Decision and Order on Remand).

In the instant proceeding, Petitioner purchased, or was responsible for the purchase of, 31 lots or perishable agricultural commodities from four produce suppliers that Jacobson Produce, Inc. [and] failed to pay in accordance with the PACA. Thus, Petitioner was actively involved in the activities resulting in some of Jacobson Produce, Inc.'s violations of section 2(4) of the PACA (7 U.S.C. § 499b(4)).

Finally, Petitioner contends "[t]he ALJ has misapprehended and misapplied In re: Michael Norinsberg, 58 Agric. Dec. 604, 617 (1999). In Norinsberg the J.O. decided that the Petitioner was not responsible [sic] connected even though he was an officer and wrote checks and his involvement was greater than the Petitioner herein." (Appeal Pet. at 2 (emphasis in original).)

I disagree with Petitioner's contention that application of the reasoning in In re Michael Norinsberg, 58 Agric. Dec. 604 (1999) (Decision and Order on Remand), to the facts in this proceeding would result in a conclusion that Petitioner was not responsibly connected, as defined by section 1(b)(9) of the PACA (7 U.S.C. § 499a(b)(9)), with Jacobson Produce, Inc. during June 1999 through January 2000, when Jacobson Produce, Inc. willfully, repeatedly, and flagrantly violated section 2(4) of the PACA (7 U.S.C. § 499b(4)).

In Norinsberg, Michael Norinsberg, an individual determined by the Chief of the PACA Branch to be responsibly connected with a PACA licensee during a period when the PACA licensee failed to make full payment promptly to produce sellers in violation of section 2(4) of the PACA (7 U.S.C. § 499b(4)), signed 14 checks drawn on the violating PACA licensee's checking accounts. These checks were payable to three persons who had not sold produce to the violating PACA licensee. I found that Michael Norinsberg's activities (signing checks) enabled persons who presented the checks for payment to receive payment and resulted in a substantial reduction of the resources available to the violating PACA licensee to pay produce sellers in accordance with the PACA. I concluded that Michael Norinsberg participated in activities that resulted in the PACA licensee's violations of the PACA. However, I did not conclude that Michael Norinsberg was responsibly connected with the violating PACA licensee because he demonstrated by a preponderance of the evidence that his signing checks was a ministerial function only. I described the ministerial nature of his activities, as follows:

[Michael Norinsberg] demonstrated by a preponderance of the evidence that his signing checks was a ministerial function only. The checks were presented to [Michael Norinsberg] for signature with the checks already made out as to payee and amount. [Michael Norinsberg] signed the checks presented to him when the president of [the violating PACA

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licensee] was not available and at the direction of the president of [the violating PACA licensee]. . . . I find, under these circumstances, that [Michael Norinsberg] did not exercise judgment or discretion with respect to, or control over, the check signing and that [Michael Norinsberg] performed only a ministerial function.

In re Michael Norinsberg, 58 Agric. Dec. 604, 618 (1999) (Decision and Order on Remand).

In the instant proceeding, Petitioner failed to demonstrate by a preponderance of the evidence that her activities (buying frozen foods and managing the frozen foods department) were ministerial acts. Petitioner was the buyer of, or was responsible for buying, 31 lots of frozen foods from four produce suppliers which Jacobson Produce, Inc. failed to pay, in violation of section 2(4) of the PACA (7 U.S.C. § 499b(4)). Petitioner failed to show that she exercised no judgment, discretion, or control with respect to these produce purchases.

ORDER

I affirm Respondent's February 21, 2001, determination that Petitioner was responsibly connected with Jacobson Produce, Inc. during June 1999 through January 2000, a period during which Jacobson Produce, Inc. violated the РАСА.

Accordingly, Petitioner is subject to the licensing restrictions under section 4(b) of the PACA and the employment restrictions under section 8(b) of the PACA (7 U.S.C. §§ 499d(b), 499h(b)).

This Order shall become effective 60 days after service of this Order on Petitioner.

In re: JANET S. ORLOFF, MERNA K. JACOBSON, AND TERRY A. JACOBSON.

PACA-APP Docket No. 01-0002.

Order Denying Petition for Reconsideration as to Merna K. Jacobson. Filed April 24, 2003.

PACA-APP - Petition for reconsideration - Perishable agricultural commodities - Failure to make full payment promptly - Responsibly connected - Nominal partner - Nominal manager - Knowledge of violations - Active involvement in activities resulting in violations.