56 Agric. Dec. 1458 For the foregoing reasons and the reasons set forth in the Decision and Order filed November 6, 1997, In re Samuel Zimmerman, supra, Respondent's Petition for Reconsideration is denied. Section 1.146(b) of the Rules of Practice (7 C.F.R. § 1.146(b)) provides that the decision of the Judicial Officer shall automatically be stayed pending the determination to grant or deny a timely filed petition for reconsideration." Respondent's Petition for Reconsideration was timely filed and automatically stayed the Decision and Order filed on November 6, 1997. Therefore, since Respondent's Petition for Reconsideration is denied, I hereby lift the automatic stay, and the Order in the Decision and Order filed November 6, 1997, is reinstated, with allowance for time passed. For the foregoing reasons, the following Order should be issued. Order (1997) (imposing a $26,000 civil penalty and a 10-year disqualification from becoming licensed under the Animal Welfare Act for 32 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Volpe Vito, Inc., 56 Agric. Dec. 166 (1997) (imposing a $26,000 civil penalty and a revocation of license for 51 violations of the Animal Welfare Act, the Regulations, and the Standards), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re William Joseph Vergis, 55 Agric. Dec. 148 (1996) (imposing a $2,500 civil penalty and a 1-year disqualification from becoming licensed under the Animal Welfare Act for one violation of the Regulations and one violation of the cease and desist provisions of a Consent Decision); In re Big Bear Farm, Inc., 55 Agric. Dec. 107 (1996) (imposing a $6,750 civil penalty and 45-day license suspension for 36 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Ronald D. De Bruin, 54 Agric. Dec. 876 (1995) (imposing a $5,000 civil penalty and 30-day license suspension for 21 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Tuffy Truesdell, 53 Agric. Dec. 1101 (1994) (imposing a $2,000 civil penalty and 60-day license suspension for numerous violations on four different dates over a 13-month period); In re Gentle Jungle, Inc., 45 Agric. Dec. 135 (1986) (imposing a $15,300 civil penalty and license revocation for numerous violations of the Regulations and the Standards); In re JoEtta L. Anesi, 44 Agric. Dec. 1840 (1985) (imposing a $1,000 civil penalty and license revocation for 10 violations of the Regulations and a previously issued cease and desist order), appeal dismissed, 786 F.2d 1168 (8th Cir.)(Table), cert. denied, 476 U.S. 1108 (1986). 'In re Kanowitz Fruit & Produce Co., 56 Agric. Dec. 942, 957 (1997) (Order Denying Petition for Reconsideration); In re Volpe Vito, Inc., 56 Agric. Dec. 269, 275 (1997) (Order Denying Petition for Reconsideration); In re City of Orange, 56 Agric. Dec. 370, 371 (1997) (Order Granting Request to Withdraw Petition for Reconsideration); In re Five Star Food Distributors, Inc., 56 Agric. Dec. 898, 901 (1997) (Order Denying Petition for Reconsideration); In re Havana Potatoes of New York Corp., 56 Agric. Dec. 1017, 1028 (1997) (Order Denying Petition for Reconsideration); In re Saulsbury Enterprises, 56 Agric. Dec. 82, 101 (1997) (Order Denying Petition for Reconsideration); In re Andershock Fruitland, Inc., 55 Agric. Dec. 1234 (1996) (Order Denying Petition for Reconsideration). 1. Respondent, Samuel Zimmerman, is assessed a civil penalty of $7,500. The penalty shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded to: Robert A. Ertman United States Department of Agriculture Office of the General Counsel Marketing Division Room 2014 South Building 1400 Independence Avenue, S.W. Washington, DC 20250-1413 Respondent's payment of the civil penalty shall be forwarded to and received by Mr. Ertman within 70 days after service of this Order on Respondent. The certified check or money order should indicate that payment is in reference to AWA Docket No. 96-0021. 2. Respondent, Samuel Zimmerman, his agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act, and, in particular, shall cease and desist from: (a) failing to maintain complete records showing the acquisition, disposition, and identification of animals; (b) (c) failing to provide veterinary care to animals in need of care; failing to store supplies of food in a manner so as to protect them from spoilage, contamination, and vermin infestation; (d) failing to provide for dogs primary enclosures that are structurally sound and maintain for dogs primary enclosures in good repair so as to protect the animals from injury; (e) failing to remove excreta from primary enclosures daily in order to prevent soiling of the animals and to reduce disease hazards, insects, pests, and odors; (f) failing to keep premises where the housing facilities are located clean and in good repair to protect animals from injury, to facilitate husbandry practices, and to reduce or eliminate breeding and living areas for rodents and other pests and vermin; (g) failing to make provisions for the regular and frequent collection, removal, and disposal of animal wastes and other fluids and wastes in a manner that 56 Agric. Dec. 1458 minimizes contamination and disease risks; and (h) failing to allow Animal and Plant Health Inspection Service officials entry to inspect his facility. The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondent. 3. Respondent's Animal Welfare Act license is suspended for a period of 40 days and continuing thereafter until Respondent demonstrates to the Animal and Plant Health Inspection Service that he is in full compliance with the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act, and this Order, including payment of the civil penalty assessed in this Order. When Respondent demonstrates to the Animal and Plant Health Inspection Service that he has satisfied the conditions in this paragraph of this Order, a Supplemental Order will be issued in this proceeding upon the motion of the Animal and Plant Health Inspection Service, terminating the suspension of Respondent's Animal Welfare Act license after the expiration of the 40-day license suspension period. The Animal Welfare Act license suspension provisions in this Order shall become effective on the 70th day after service of this Order on Respondent. BEEF PROMOTION and RESEARCH ACT In re: JERRY GOETZ, d/b/a JERRY GOETZ AND SONS. BPRA Docket No. 94-0001. Decision and Order filed November 3, 1997. Beef order - Collecting person - Civil penalty - Assessments - Failure to submit reports - Late payment charge - First amendment right to free speech Taxation Equal protection Interstate commerce. The Judicial Officer affirmed Judge Hunt's (ALJ) decision that Respondent violated the Beef Promotion and Research Order (7 C.F.R. §§ 1260.101.-.217) (Beef Promotion Order) and the Rules and Regulations (7 C.F.R. §§ 1260.301-.316) (Beef Promotion Regulations) by failing to remit assessments due to a qualified State beef council. In addition, the Judicial Officer found that Respondent violated the Beef Promotion Order and the Beef Promotion Regulations by failing to transmit reports of assessments to the Kansas Beef Council. The Judicial Officer held that the Beef Promotion and Research Act of 1985 (Beef Promotion Act), the Beef Promotion Order, and the Beef Promotion Regulations do not violate Respondent's First Amendment right to freedom of speech and do not violate Respondent's right to equal protection of the laws. The Beef Promotion Act is a valid regulation of interstate commerce and the assessments required to be collected and remitted under the Beef Promotion Act are not taxes, but rather, mere incidents of the regulation of commerce. Late payment charges under the Beef Promotion Order are not designed to penalize those who fail to remit assessments when due, but rather, are designed to reimburse the entity to which the assessments are not timely remitted for the time value of the assessments. Neither the Beef Promotion Act, the Beef Promotion Order, nor the Beef Promotion Regulations limits the time within which an action to collect unremitted assessments and late payment charges, assess civil penalties, or issue a cease and desist order may be instituted. The Judicial Officer ordered Respondent to pay assessments of $21,423 which Respondent failed to remit in accordance with the Beef Promotion Order and Beef Promotion Regulations and late payment charges of $45,154 to the Kansas Beef Council, ordered Respondent to cease and desist from violating the Beef Promotion Act, the Beef Promotion Order, and the Beef Promotion Regulations, and assessed Respondent a civil penalty of $69,244.51 in accordance with section 9(a) of the Beef Promotion Act (7 U.S.C. § 2908(a)). Sharlene A. Deskins, for Complainant. David R. Klaassen and Clarence L. King, Jr., Marquette, KS, for Respondent. The Acting Administrator of the Agricultural Marketing Service, United States Department of Agriculture [hereinafter Complainant], instituted this proceeding under the Beef Promotion and Research Act of 1985 (7 U.S.C §§ 2901-2911) [hereinafter the Beef Promotion Act]; the Beef Promotion and Research Order (7 C.F.R. §§ 1260.101-.217) [hereinafter the Beef Promotion Order]; the Rules and Regulations (7 C.F.R. §§ 1260.301-.316) [hereinafter the Beef Promotion Regulations]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130 56 Agric. Dec. 1470 .151) [hereinafter the Rules of Practice] by filing a Complaint on October 29, 1993. The Complaint alleges that Jerry Goetz, d/b/a Jerry Goetz and Sons [hereinafter Respondent]: (1) willfully violated section 1260.201 of the Beef Promotion Order (7 C.F.R. § 1260.201) and section 1260.312 of the Beef Promotion Regulations (7 C.F.R. § 1260.312) by failing to submit required reports (Compl. ¶ II(A)); (2) willfully violated section 1260.201 of the Beef Promotion Order (7 C.F.R. § 1260.201) and section 1260.312 of the Beef Promotion Regulations (7 C.F.R. § 1260.312) by failing to submit necessary information in required reports (Compl. ¶ II(B)); and (3) willfully violated section 1260.172 of the Beef Promotion Order (7 C.F.R. § 1260.172) and sections 1260.311 and 1260.312 of the Beef Promotion Regulations (7 C.F.R. §§ 1260.311, .312) by failing to remit the assessments due for the purchase and sale of cattle (Compl. ¶ III(A)-(L)). Complainant requests the issuance of an order or orders as authorized under the Beef Promotion Act, including an order requiring Respondent to cease and desist from violating the Beef Promotion Order and Beef Promotion Regulations and assessing civil penalties against Respondent in accordance with section 9 of the Beef Promotion Act (7 U.S.C. § 2908) (Compl. at 4-5). On December 10, 1993, Respondent filed an Answer denying the material allegations of the Complaint and contending that the Beef Promotion Act, the Beef Promotion Order, and the Beef Promotion Regulations are unconstitutional, unauthorized, unreasonable, arbitrary, void, and unenforceable (Answer ¶¶2-4). Respondent requests denial of the relief requested in the Complaint and a determination and declaration that the Beef Promotion Act is unconstitutional, void, and unenforceable; and the Beef Promotion Order and the Beef Promotion Regulations are unconstitutional, unauthorized, unreasonable, arbitrary, void, and unenforceable (Answer at 1-2). On August 2, 1994, Respondent filed an action in the United States District Court for the District of Kansas seeking a temporary restraining order to prevent a hearing from being held in this proceeding. The court issued an order requiring an audit by the accounting firm of Wendling, Noe, Nelson & Johnson of Topeka, Kansas, of Respondent's books and records pertaining to his raising, buying, selling, and trading of cattle and Respondent's collection of monies, if any, under the Beef Promotion Act and enjoined the instant proceeding pending the completion of the audit of Respondent's books and records (Complainant's Findings of Fact Conclusions of Law and Brief in Support Thereof [hereinafter Complainant's Findings of Fact], Exhibit A). On August 4, 1994, Respondent filed a Complaint in United States District Court for the District of Kansas challenging the constitutionality of the Beef Promotion Act. The court stayed the instant |