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5. Respondent's bankruptcy documents' included Schedule F - Creditors Holding Unsecured Nonpriority Claims (hereinafter "Bankruptcy Schedule F"). In that bankruptcy schedule, Respondent admitted that it owes fixed amounts for debts that total $545,125.60 to the 8 sellers that are alleged to be unpaid for agreed purchase prices in the total amount of $454,017.20 in this proceeding. Bankruptcy Schedule F contains a table with columns for the name and address of the creditor and the amount of the claim. Included among the 55 creditors named are the 8 firms listed in the Complaint, along with the amounts of their respective claims. A comparison with the table set forth in paragraph III of the Complaint reveals that the amounts acknowledged as owed by Respondent are identical for two (2) of the produce sellers, higher for another two (2) of the produce sellers, and lower for four (4) of the produce sellers. The amounts alleged unpaid by Complainant and admitted unpaid by Respondent are as follows:

Classie Produce (A Div. of Classie Growers) 104,464.00

90,000.00

6. Respondent reported in the Summary of Schedules to the voluntary petition filed in its bankruptcy proceeding that it had total assets of $56,620.00 and total liabilities of $1,217,502.09 as of March 21, 2002.

7. Respondent's President Chad Barnett declared under penalty of perjury that the information provided in Respondent's bankruptcy petition was true and correct when he signed that petition.

8. On March 22, 2002, Respondent filed an Answer in which it admitted to the material allegations of the Complaint.

'Official notice is hereby taken of those documents as authorized by In re Five Star Food Distributors, Inc., 56 Agric. Dec. 880 (1997); In re Granoff's Wholesale Fruit & Produce, Inc., 54 Agric. Dec. 1375 (1995); In re Veg-Mix, Inc., 44 Agric. Dec. 1583 (1985), remanded on other grounds, Veg-Mix, Inc. v. U.S. Dept. of Agriculture, 832 F.2d 601 (D.C. Cir. 1987).

Conclusions

Respondent has admitted, in its Answer, that it purchased, received, and accepted 47 lots of perishable agricultural commodities in interstate commerce from the 8 sellers named in the Complaint. Respondent also admitted that it failed to make full payment promptly, during the period May 2000 through June 2001, to those 8 sellers of the agreed purchase prices in the total amount of $454,017.20. Respondent's admissions in its Answer and the admissions made in Respondent's bankruptcy documents, of which official notice has been taken, establish that the $454,017.20 produce debt that Respondent owes those 8 sellers for 47 lots of perishable agricultural commodities is part of the acknowledged unsecured debt for which Respondent has sought relief from the Bankruptcy Court. By so scheduling that produce debt, Respondent has implicitly asserted that there is no prospect of full payment of that debt at any future date. A decision and order that relies upon such admissions may be issued in disciplinary proceedings brought under the PACA.2

Respondent's admitted failures to make full payment promptly are violations of Section 2(4) of the PACA (7 U.S.C. § 499b(4)). Respondent's violations are willful, flagrant and repeated violations of Section 2(4) of the Act (7 U.S.C. § 499b(4)) as a matter of law. The violations are "flagrant" because of the number of violations, the amount of money involved, and the lengthy time period during which the violations occurred. Respondent's violations are "repeated" because repeated means more than one. Also, Respondent's failures

2See, In re Kirby Produce Company, 58 Agric. Dec. 1011 (1999); In re Five Star Food Distributors, Inc., 56 Agric. Dec. 880 (1997); In re Granoff's Wholesale Fruit & Produce, Inc., 54 Agric. Dec. 1375 (1995); In re Veg-Mix, Inc., 44 Agric. Dec. (1985), remanded on other grounds, Veg-Mix, Inc. v. U.S. Dept. of Agriculture, 832 F.2d 601 (D.C. Cir. 1987).

See, e.g., Melvin Beene Produce Co. v. Agricultural Marketing Service, 728 F.2d 347, 351 (6th Cir. 1984) (holding 227 transactions occurring over a 14-month period to be repeated and flagrant violations of the PACA); Reese Sales Co. v. Hardin, 458 F. 183 (9th Cir. 1972) (finding 26 violations involving $19,059.08 occurring over 2 1⁄2 months to be repeated and flagrant); Zwick v. Freeman, 373 F.2d 110, 115 (2d Cir. 1967) (concluding that because the 295 violations did not occur simultaneously, they must be considered "repeated" violations within the context of the PACA and finding 295 violations to be "flagrant" violations of the PACA in that they occurred over several months and involved more than $250,000); In re Havana Potatoes of New York Corp. and Havpo, Inc., 55 Agric. Dec. 1234 (1996), aff'd, 1997 WL 829211 (2d Cir. December 19, 1997), court decision printed at 56 Agric. Dec. 1790 (1997), (Havana's failure to pay 66 sellers $1, 960, 958.74 for 345 lots of perishable agricultural commodities during the period of February 1993 through January 1994 constitutes willful, flagrant and repeated violations of 7 U.S.C. § 499b(4), (continued...)

62 Agric. Dec. 373

to pay for its purchase obligations, which Respondent has acknowledged as liquidated, undisputed and non- contingent debts, within the time limits established by a substantive regulation-7 C.F.R.

§ 46.2(aa)--duly

promulgated under the PACA are willful as a matter of law. Accordingly, Respondent's admitted failures to make full payment promptly, to the 8 sellers named in the Complaint, constitute willful, flagrant and repeated violations of Section 2(4) of the PACA (7 U.S.C. § 499b(4)).

According to the Department Judicial Officer's policy, in any PACA disciplinary proceeding in which it is alleged that a Respondent has failed to pay in accordance with the PACA and Respondent admits the material allegations in the Complaint and makes no assertion that the Respondent has achieved full compliance or will achieve full compliance with the PACA within 120 days after the Complaint was served on Respondent or the date of the hearing, whichever occurs first, the PACA case will be treated as a "no-pay" case. In any "no-pay" case in which the violations are flagrant or repeated, the license of a PACA licensee, shown to have violated the payment provisions of the PACA, will be revoked.5

Currently, Respondent does not have a valid PACA license. As a result, the proper sanction for its admitted violations is a finding that Respondent committed willful, flagrant and repeated violations of Section 2(4) of the PACA (7 U.S.C. § 499b(4)) and an order that the facts and circumstances of Respondent's violations be published. Thus, the following Order is issued.

Order

3(...continued)

and Havpo's failure to pay 6 sellers $101, 577.50 for 23 lots of perishable agricultural commodities during the period of August 1993 through January 1994 constitutes willful, flagrant and repeated violations of 7 U.S.C. § 499b(4)); and In re Five Star Distributors, 56 Agric. Dec. 880, at 896-97 (1997) (holding that 174 violations involving 14 sellers and at least $238, 374.08 over a 11 month period were "willful, repeated, and flagrant, as a matter of law").

*Id.

See, In re Scam corp, Inc., d/b/a Goodness Greeness, 57 Agric. Dec. 527, at 562 (1998).

'See, e.g., In re Kirby Produce Company, 58 Agric. Dec. 1011 (1999); In re H. Schnell & Company, Inc., 58 Agric. Dec. 1002 (1999); In re Hogan Distributing, Inc., 55 Agric. Dec. 622, 633 (1996); In re National Produce Co., Inc., 53 Agric. Dec. 1622, 1626 (1964).

Respondent D & C Produce, Inc., has committed willful, flagrant and repeated violations of Section 2(4) of the PACA (7 U.S.C. § 499b(4)).

The facts and circumstances of such violations set forth herein shall be published.

This order shall become final and effective without further proceeding 35 days after service thereof upon Respondent, unless there is an appeal to the Judicial Officer pursuant to Section 1.145 of the Rules of Practice (7 C.F.R. § 1.145). Copies hereof shall be served upon the parties.

[This Decision and Order became effective on March 3, 2003. - Editor]

In re: PELICAN PRODUCE, INC.

PACA Docket No. D-03-0001.

Decision Without Hearing by Reason of Default.

Filed January 21, 2002.

PACA – Default - Payment, failure to make prompt.

Ann Parnes, for Complainant.

Respondent, Pro se.

Decision and Order issued by Jill S. Clifton, Administrative Law Judge.

Preliminary Statement

This is a disciplinary proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. § 499a et seq.) (hereinafter referred to as the "Act" or "PACA"), instituted by a Notice to Show Cause and Complaint filed on October 8, 2002, by the Associate Deputy Administrator, Fruit and Vegetable Programs, Agricultural Marketing Service, United States Department of Agriculture. The Complaint alleges that during the period July 2001 through August 2002, Respondent Pelican Produce, (hereinafter "Respondent") failed to make full payment promptly to 5 sellers of the agreed purchase prices, or balances thereof, in the total amount of $274,690.19 for 84 lots of perishable agricultural commodities that it purchased, received, and accepted in interstate and foreign commerce.

Respondent's PACA license terminated on July 7, 2002, pursuant to Section 4(a) of the Act (7 U.S.C. § 499d(a)), because Respondent failed to pay the required renewal fee. On September 9, 2002, Complainant received Respondent's completed application for a new PACA license. In accordance with Section 4(d) of the Act (7 U.S.C. § 499d(d)), Complainant withheld the issuance of a new license pending its investigation to determine whether

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Respondent was unfit to engage in business subject to the Act. As a result of the investigation, it was determined that Respondent had failed to make full payment promptly for its purchases of perishable agricultural commodities as stated above. Therefore, Complainant alleges that Respondent is unfit to engage in the business of a commission merchant, dealer, or broker because Respondent has engaged in practices of a character prohibited by the PACA.

The Associate Deputy Administrator filed the Notice to Show Cause why Respondent should not be denied a PACA license on October 8, 2002, and a Complaint alleging the payment violations. The Notice to Show Cause and Complaint were sent to Respondent via certified mail on October 9, 2002. On October 10, 2002, the Hearing Clerk re-sent the Complaint along with a cover sheet informing Respondent that the docket number for this case had changed, and that therefore, Respondent had ten (10) days from service of that letter to file an answer. The Complaint and Notice to Show Cause were mailed to both Respondent's business and mailing address. The copy mailed to Respondent's mailing address was served on October 17, 2002. The copy mailed to Respondent's business address was returned undeliverable. On November 5, 2002, the Hearing Clerk re-sent the Notice to Show Cause and Complaint, via regular mail, to a different address for Respondent, 148 Harbor Circle, New Orleans, Louisiana 71026. The Hearing Clerk received no response from Respondent.

Respondent failed to file an answer to the Complaint within the time allowed for that purpose, and thus waived its opportunity for a hearing. Since Respondent was given an opportunity for a hearing to show cause why its application for license should not be denied but failed to avail itself of its right and Respondent failed to file an answer, upon motion of the Complainant for the issuance of a Default Order, the following Decision and Order shall be issued without further investigation or hearing pursuant to Section 1.139 of the Rules of Practice (7 C.F.R. § 1.139).

Findings of Fact

1. Respondent is a corporation organized and existing under the laws of the State of Louisiana. Its business address is 740 St. George Avenue, Jefferson, Louisiana 70121. Its mailing address is P. O. Box 26336, New Orleans, Louisiana 70126.

2. License number 941514 was issued to Respondent on July 7, 1994. This license terminated on July 7, 2002, pursuant to Section 4(a) of the PACA (7 U.S.C. § 499d(a)), when Respondent failed to pay the required renewal fee.