3. During the period May 6, 2001, through August 20, 2002, Respondent failed to make full payment promptly to five sellers of the agreed purchase prices in the total amount of $274,690.19 for 84 lots of perishable agricultural commodities, which it purchased, received, and accepted in interstate commerce. 4. On September 9, 2002, Complainant received Respondent's completed application for a PACA license. Conclusions Respondent was given an opportunity for a hearing to show cause why its application for a PACA license should not be denied, pursuant to Section 4(d) of the Act (7 U.S.C. § 499d(d)); Respondent, however, failed to avail itself of its right. Moreover, Respondent failed to answer the allegations in the Complaint, which constitutes a waiver of hearing under section 1.139 of the Rules of Practice and is deemed an admission of the allegations of the Complaint (7 C.F.R. 1.136). Respondent's failure to make full payment promptly with respect to the transactions set forth in Finding of Fact No. 3 above, constitutes willful, flagrant and repeated violations of Section 2(4) of the Act (7 U.S.C. §499b(4)). As a result of Respondent's failure to make full payment promptly for its purchases of perishable agricultural commodities, 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 pursuant to Section 4(d) of the Act (7 U.S.C. § 499d(d)). Order A finding is made that Respondent has committed willful, flagrant and repeated violations of Section 2(4) of the Act (7 U.S.C. § 499b(4)), and the facts and circumstances of the violations set forth above shall be published. Furthermore, a finding is made pursuant to Section 4(d) of the PACA (7 U.S.C. §499d(d)) that Respondent is unfit to be licensed under the PACA because Respondent has engaged in practices of a character prohibited by the PACA. Thus, Respondent's application for a PACA license is refused. This order shall take effect on the 11th day after this Decision becomes final. Pursuant to the Rules of Practice governing procedures under the Act, this Decision will become final without further proceedings 35 days after service 62 Agric. Dec. 383 hereof unless appealed to the Secretary by a party to the proceeding within 30 days after service as provided in Sections 1.139 and 1.145 of the Rules of Practice (7 C.F.R. §§ 1.139 and 1.145). Copies hereof shall be served upon the parties. [This Decision and Order became final on March 3, 2003. - Editor] In re: DANNY & SONS, INC., also d/b/a CHESAPEAKE FARMS. Decision Without Hearing by Reason of Default. Filed January 23, 2002. PACA - Default - Payment, failure to make prompt. Charles Kendall, for Complainant. Robert Scarlett, for Respondent. Decision and Order filed by James W. Hunt, Administrative Law Judge. Preliminary Statement This is a disciplinary proceeding under the Perishable Agriculture Commodities Act, 1930, as amended (7 U.S.C. § 499a et seq.) (hereinafter referred to as the "Act"), instituted by a Complaint filed on March 29, 2002, by the Associate Deputy Administrator, Fruit and Vegetable Programs, Agricultural Marketing Service, United States Department of Agriculture. The Complaint alleged that during the period October 2, 2000, through February 3, 2001, Respondent Danny & Sons, Inc., also doing business as Chesapeake Farms, (hereinafter "Respondent") failed to make full payment promptly to 21 sellers of the agreed purchase prices in the total amount of $1,783,608.03 for 617 lots of perishable agricultural commodities which it purchased, received, and accepted in interstate commerce. A copy of the Complaint was mailed to Respondent by certified mail at its business mailing address on March 29, 2002, and was returned to the office of the Hearing Clerk on April 16, 2002. A copy of the Complaint was re-mailed to Respondent by regular mail on May 7, 2002 pursuant to Section 1.147(c) of the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §1.130 et seq., hereinafter "Rules of Practice"), and was returned to the office of the Hearing Clerk on May 29, 2002. The time for filing an Answer to the Complaint expired on May 27, 2002. The Hearing Clerk additionally sent a copy of the Complaint by certified mail on July 25, 2002 to the attorney of record for Respondent, Robert Scarlett, Esq., who received the Complaint on July 29, 2002. Respondent has not answered the Complaint. The time for filing an Answer having expired, and upon motion of the Complainant for the issuance of a Default Order, the following Decision and Order shall be issued without further procedure pursuant to Section 1.139 of the Rules of Practice. Finding of Fact 1. Respondent is a corporation organized and existing under the laws of the State of Maryland. Its business address was 4665 Hollins Ferry Road, Baltimore, Maryland 21227. Its mailing address is P.O. Box 18270, Halethorpe, Maryland 21227. 2. At all times material herein, Respondent was licensed under the PACA. License number 940510 was issued to Respondent on January 7, 1994. This license was suspended on April 10, 2001, when the firm failed to pay a reparation order. The license terminated on January 7, 2002, pursuant to Section 4(a) of the PACA (7 U.S.C. §499d(a)), when Respondent failed to pay the required annual renewal fee. 3. The Secretary has jurisdiction over Respondent and the subject matter involved herein. 4. Respondent, during the period November 1998 through July 2001, failed to make full payment promptly to 21 sellers of the agreed purchase prices in the total amount of $1,783,608.03 for 617 lots of perishable agricultural commodities, which it purchased, received, and accepted in interstate commerce. Conclusions Respondent's failure to make full payment promptly with respect to the 617 transactions set forth in Finding of Fact No. 4 above constitutes wilful, repeated and flagrant violations of Section 2(4) of the Act (7 U.S.C. § 499b(4)), for which the Order below is issued. Order Respondent has committed willful, flagrant and repeated violations of Section 2 of the Act (7 U.S.C. 499b), and the facts and circumstances of the violations shall be published. This order shall take effect on the 11th day after this Decision becomes final. Pursuant to the Rules of Practice, this Decision will become final without further proceedings 35 days after service hereof unless appealed to the Secretary 62 Argic. Dec. 385 by a party to the proceeding within 30 days after service as provided in Sections 1.139 and 1.145 of the Rules of Practice (7 C.F.R. 1.139 and 1.145). Copies hereof shall be served upon parties. [This Decision became final on March 4, 2003 - Editor] In re: FURRS SUPERMARKETS, INC. PACA Docket No. D-02-0028. Decision Without Hearing Based on Admissions. Filed February, 6, 2003. Ann Parnes, for Complainant. Robert H. Jacobvitz, for Respondent. Decision and Order issued by James W. Hunt, Administrative Law Judge. PACA - Default - Payment, failure to make prompt. In this disciplinary proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. § 499a et seq.) (hereinafter, "PACA"), Complainant has filed a Motion for Decision Without Hearing Based on Admissions, pursuant to section 1.139 of the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary (7 C.F.R. § 1.139) (hereinafter, "Rules of Practice"). A copy of Complainant's motion has been served upon Respondent, which has not filed a response thereto. This proceeding was initiated by a complaint filed on September 12, 2002, alleging that Respondent committed willful, flagrant and repeated violations of section 2(4) of the PACA (7 U.S.C. § 499b(4)) by failing to make full payment promptly to one produce seller, Quality Fruit & Veg. Co., El Paso, Texas (hereinafter, "Quality Fruit"), in the amount of $174,105.05, for 910 lots of perishable agricultural commodities which Respondent purchased, received and accepted in interstate or foreign commerce during the period September 1998 through February 2001. The complaint also alleged that, on February 8, 2001, Respondent filed a Voluntary Petition in Bankruptcy pursuant to Chapter 11 of the Bankruptcy Code (11 U.S.C. § 1101 et seq.) in the United States Bankruptcy Court of the District of New Mexico (Case No. 11-01-10779-SA), and that the case was converted to a Chapter 7 Bankruptcy on December 19, 2001. The complaint requested the issuance of a finding that Respondent committed willful, repeated and flagrant violations of section 2(4) of the PACA and publication of that finding. Respondent, acting through its trustee in bankruptcy, filed an answer in which it admitted that it failed to make full payment promptly for the produce purchases alleged in the complaint, although Respondent made several affirmative defenses. However, none of these defenses have any merit. Respondent's admission that it failed to make full payment promptly is found in its answer at paragraph 4 of its Third Defense, in which Respondent admitted that it made the sales to Quality Fruit on which the alleged payment violations are based but asserted that it did not pay Quality Fruit because Quality Fruit had failed to perfect its claim under the PACA trust provisions (see 7 U.S.C. § 499e(c)). The failure of Quality Fruit to perfect its PACA trust claim has no effect on Respondent's statutory responsibility to make full payment promptly for produce purposes. In re Great Western Produce, Inc., 50 Agric. Dec. 1941, 1942 at note 3 (1991). Additional evidence that Respondent admittedly failed to make full payment promptly to Quality Fruit is found in Schedule F of Respondent's Bankruptcy Petition (attached to Complainant's Motion for Decision Without Hearing Based on Admissions as Exhibit 1), in which Respondent lists Quality Fruit's claim for $174,105.05 as an unsecured indebtedness. Respondent's admission that it has failed to pay Quality Fruit the amount alleged in the complaint warrants the immediate issuance of a Decision Without Hearing Based on Admissions. The Department's policy with respect to admissions in PACA disciplinary cases with respect to the alleged failure to make full payment promptly is set forth in In re Scamcorp, Inc., d/b/a Goodness Greeness, 57 Agric. Dec. 527, 549 (1998), as follows: 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 the 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. Respondent has admitted in its answer that it has failed to pay Quality Fruit the amount alleged in the complaint. Therefore, this case must be treated as a "no-pay" case, which warrants the revocation of Respondent's PACA license. However, since Respondent's license has terminated due to its failure to pay the |