as provided by the Rules of Practice and Procedure, 7 C.F.R. § 1.145. Copies hereof shall be served upon the parties. [Note: This Decision and Order became effective on January 13, 2003.] In re: ROBERT A. ROBERTI, JR., d/b/a PHOENIX FRUIT CO. Ruling on Certified Question. Ruben D. Rudolph, Jr., for Complainant. Charles Hultstrand, for Respondent. Ruling issued by William G. Jenson, Judicial Officer. PACA - License application, USDA may withhold, if incomplete - Certified question, ruling. The Judicial Officer (JO) ruled in response to a question certified by Chief Judge James W. Hunt: Is Respondent entitled to a PACA license, pursuant to 7 U.S.C. § 499d(d), because the Secretary of Agriculture did not conclude her investigation of Respondent's fitness for a PACA license within 30 days of the date Respondent filed his PACA license application? The JO concluded the Secretary of Agriculture completed the investigation of Respondent's fitness for a PACA license no later than December 4, 2002, 29 days after Respondent filed a valid PACA license application, as required by 7 C.F.R. § 46.4. The JO concluded the term "full or complete answers to all the questions," as used in 7 C.F.R. § 46.4(d), indicates that Respondent's answers to questions must not be lacking in any essential and must have all the necessary parts, elements, or steps. The JO found Respondent's October 10, 2002, and October 29, 2002, PACA license applications were not complete. Further, the JO concluded the Respondent's October 10, 2002, and October 29, 2002, PACA license applications were not inaccurate, but rather were incomplete; therefore, 7 C.F.R. § 46.4(f) was not applicable to the proceeding. On January 14, 2003, Chief Administrative Law Judge James W. Hunt [hereinafter the Chief ALJ] certified a question to the Judicial Officer pursuant to section 1.143(e) of the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. § 1.143(e)). On January 31, 2003, Eric M. Forman, Associate Deputy Administrator, Fruit and Vegetable Programs, Agricultural Marketing Service, United States Department of Agriculture [hereinafter Complainant], filed a "Brief Regarding Question Certified to the Judicial Officer" [hereinafter Complainant's Brief] addressing the issue raised in the Chief ALJ's January 14, 2003, certified question. On February 6, 2003, Robert A. Roberti, Jr., d/b/a Phoenix Fruit Co. [hereinafter Respondent], filed "Responding Brief Regarding Question Certified to the Judicial Officer" [hereinafter Respondent's Brief]. On 62 Agric. Dec. 302 February 7, 2003, the Hearing Clerk transmitted the record to the Judicial Officer for a ruling on the Chief ALJ's January 14, 2003, certified question. The Chief ALJ poses the following certified question: Query: Is Respondent entitled to a license because Complainant did not conclude its investigation within thirty days of the application? Certification of Question to the Judicial Officer at 3. The Perishable Agricultural Commodities Act, as amended (7 U.S.C. §§ 499a-499s) [hereinafter the PACA], provides the Secretary of Agriculture may withhold the issuance of a PACA license to an applicant, pending an investigation of the applicant's fitness for a PACA license or the accuracy and completeness of the PACA license application, for a period not exceeding 30 days, as follows: § 499d. Issuance of license (d) Withholding license pending investigation The Secretary may withhold the issuance of a license to an applicant, for a period not to exceed thirty days pending an investigation, for the purpose of determining (a) whether the applicant is unfit to engage in the business of a commission merchant, dealer, or broker because the applicant..., prior to the date of the filing of the application engaged in any practice of the character prohibited by this chapter or was convicted of a felony in any State or Federal court, or (b) whether the application contains any materially false or misleading statement or involves any misrepresentation, concealment, or withholding of facts respecting any violation of the chapter by any officer, agent, or employee of the applicant. If after investigation the Secretary believes that the applicant should be refused a license, the applicant shall be given an opportunity for hearing within sixty days from the date of the application to show cause why the license should not be refused. If after the hearing the Secretary finds that the applicant is unfit to engage in the business of a commission merchant, dealer, or broker because the applicant..., prior to the date of the filing of the application engaged in any practice of the character prohibited by this chapter or was convicted of a felony in any State or Federal court, or because the application contains any materially false or misleading statement made by the applicant or by its representative on its behalf, or involves any misrepresentation, concealment, or withholding of facts respecting any violation of the chapter by any officer, agent, or employee, the Secretary may refuse to issue a license to the applicant. 7 U.S.C. § 499d(d). Based on the limited record before me, I find Respondent did not file a complete PACA license application until November 5, 2002.1 I also find Complainant completed the investigation of Respondent's fitness for a PACA license no later than December 4, 2002, 29 days after Respondent filed a complete PACA license application.2 I, therefore, conclude the Secretary of Agriculture is not required to issue Respondent a PACA license based on the time limitation for withholding the issuance of a PACA license in section 4(d) of the PACA (7 U.S.C. § 499d(d)). Respondent asserts he filed a complete PACA license application on October 10, 2002.3 I disagree with Respondent's assertion. Section 46.4(b)(1)-(7) of the regulations issued under the PACA (7 C.F.R. § 46.4(b)(1)-(7)) specifies the information an applicant for a PACA license must furnish to obtain a PACA license. Section 46.4(b)(8) of the regulations issued under the PACA (7 C.F.R. § 46.4(b)(8)) provides, in addition to the information specified in 7 C.F.R. § 46.4(b)(1)-(7), the applicant must furnish "[a]ny other information the Director deems necessary to establish the identity and eligibility of the applicant to obtain a license." The record establishes that Respondent's October 10, 2002, PACA license application was not complete. Specifically, Respondent failed to submit a copy of the bankruptcy petition, schedules, disclosure statements, and other documents relevant to Respondent's bankruptcy petition, as required by 'See letter dated November 4, 2002, from Charles Hultstrand to John A. Koller and Affidavit of Jane E. Servais ¶ 6 (Reply to Matter Concerning Date of Respondent's Application for PACA License (Attach. 1 and Attach. 6)). 2See Notice to Show Cause filed December 4, 2002. See Response to Notice to Show Cause ¶¶ I, II(b), V, VIIIa; Response to Motion for Expedited Hearing; Reply Re: Date of Application for PACA License; Respondent's Brief. "Director" means the Director, Fruit and Vegetable Division, Agricultural Marketing Service, United States Department of Agriculture. 7 C.F.R. § 46.2(d), (f)-(g). 62 Agric. Dec. 302 Respondent's affirmative response to question 9 on the PACA license application form.5 Moreover, on September 26, 2002, David N. Studer, an employee of the PACA Branch, Agricultural Marketing Service, United States Department of Agriculture, informed Respondent's counsel that, due to Respondent's involvement in bankruptcy proceedings within the last 3 years, Respondent would be required to submit additional information when applying for a PACA license. Respondent's October 10, 2002, PACA license application did not include the information which David N. Studer stated would be required to be submitted as part of Respondent's PACA license application. Section 46.4(d) of the regulations issued under the PACA (7 C.F.R. § 46.4(d)) provides that an incomplete PACA license application is not a valid license application and the 30-day period in section 4(d) of the PACA (7 U.S.C. § 499d(d)) for the Secretary of Agriculture's completion of an investigation does not commence until a valid PACA license application is received, as follows: § 46.4 Application for license. (d) The application and fees shall be forwarded to the Director, Fruit and Vegetable Division, Agricultural Marketing Service, U.S. Department of Agriculture, Washington, D.C. 20250, or to his representative. An application which does not contain full or complete answers to all the questions . . . shall not be considered a valid application for license. The "period not to exceed 30 days" as prescribed in section 4(d) of the Act shall commence on the day a valid application for license is received by the Director or his representative. 7 C.F.R. § 46.4(d) (emphasis added). Respondent asserts his October 10, 2002, PACA license application contains full and complete answers to all of the questions on the PACA license 'See Reply to Matter Concerning Date of Respondent's Application for PACA License (Attach. 2 at 2). "See Reply to Matter Concerning Date of Respondent's Application for PACA License (Attach. 3). application form. The term full or complete answers to all the questions, as used in section 46.4(d) of the regulations issued under the PACA (7 C.F.R. § 46.4(d)), indicates that answers to questions must not be "lacking in any essential" and must have "all necessary parts, elements, or steps." I find Respondent's failure to provide the documents required by Respondent's affirmative response to question 9 on the PACA license application form is a failure to provide a "full or complete" answer to question 9 on the PACA license application form. Moreover, Respondent's failure to provide the information which David N. Studer informed Respondent's counsel would be required to be submitted with Respondent's PACA license application is a failure to provide "full or complete answers to all the questions." As Respondent's PACA license application was not complete on October 10, 2002, I conclude Respondent did not file a valid PACA license application on October 10, 2002, as Respondent asserts. The Chief ALJ tentatively decided Respondent submitted a complete PACA license application on October 29, 2002; Complainant did not show he concluded his investigation within 30 days of October 29, 2002; and the Secretary of Agriculture must issue Respondent a PACA license pursuant to section 4(d) of the PACA (7 U.S.C. § 499d(d)). I disagree with the Chief ALJ's tentative decision. The Chief ALJ bases his tentative determination that Respondent's application was complete on October 29, 2002, on section 46.4(f) of the regulations issued under the PACA, which provides, as follows: 'See Reply Re: Date of Application for PACA License at 2; Respondent's Brief at 2. 8 See definitions of complete and full in Merriam-Webster's Collegiate Dictionary 235,471(10th ed. 1997). See also Hoyt v. Daily Mirror, Inc., 31 F. Supp. 89, 90 (S.D.N.Y. 1939) (stating the adjective complete is defined in Funk & Wagnalls Standard Dictionary as "having all needed or normal parts, elements, or details; lacking nothing; entire, perfect; full"); Town of Checotah v. Town of Eufaula, 119 P. 1014, 1017 (Okla. 1911) (citing with approval the definition of complete in Webster's New International Dictionary: filled up, with no part, item, or element lacking; free from deficiency; entire; perfect; consummate); Quinn v. Donovan, 85 Ill. 194, 195 (Ill. Jan. Term 1877) (stating one of Webster's definitions of the word full is "complete, entire, without abatement, -mature, perfect"); Wood v. Los Angeles City School Dist., 44 P.2d 644, 646 (Cal. Dist. Ct. App. 1935) (citing with approval the definition of complete in Webster's New International Dictionary: filled up, with no part, item, or element lacking; free from deficiency; entire; perfect; consummate; and citing with approval the definition of complete in Webster's Dictionary: free from deficiency, entire, absolutely finished). 'See Certification of Question to the Judicial Officer at 2-3. |