55 Agric. Dec. 784 under the Act." Big Bear Farm, Inc., et al., AWA Docket No. 93-32 (March 15, 1996) at p. 42. See also Delta Airlines, Inc., 53 Agric. Dec. 1076, 1080 (1994). Complainant requests that Respondent be assessed a civil penalty of $13,000. Respondent urges that, if he is found to have committed the alleged violation, he be assessed a civil penalty of only $500. Section 19(b) of the Act states: The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and history of previous violations. See 7 U.S.C. § 2149(b) (1988). Respondent's size was moderate. Although he sold approximately 120 dogs during the period of approximately 16 months covered by the allegations in the Complaint, he appears not to own much property. He rents the farm he works from his mother. He owns only 35 cows whose value is, at most, $10,000. He works as a part-time bartender. His total annual earnings appear to be $9,000 to $10,000 a year. There is testimony that Respondent knew that he needed to be licensed in 1991 before the sales in question. It certainly is clear that he knew about this requirement by February 1992. There is no history of prior violations. A review of other recent decisions in which respondents failed to obtain licenses, reveals that the requested penalty of $13,000 is too high. In Jerome A. Johnson, 51 Agric. Dec. 209 (1992), a $10,000 penalty was assessed. In Terry Lee Harrison, 51 Agric. Dec. 234 (1992), a $2,000 penalty was assessed. In Lloyd Wenger, 51 Agric. Dec. 247 (1992), a $4,000 penalty was assessed. In Lee Roach, 51 Agric. Dec. 252 (1992), a $5,000 penalty was assessed. In David L. Twomey, 50 Agric. Dec. 1575 (1991), a case that I decided which involved other violations, a $4,000 penalty was assessed. In Mary Bradshaw, 50 Agric. Dec. 499 (1991), a $10,000 penalty was assessed. In Ronnie Faircloth, 52 Agric. Dec. 171 (1993), a $4,000 penalty was assessed in a case which involved other violations as well. The purpose of sanctions is to deter this Respondent as well as other would be violators from committing the same violation. Taking into consideration this objective, the evidence, the criteria set forth in the statute, and the other referenced decisions, I conclude that a civil penalty of $7,000 will be sufficient to deter this Respondent and others from committing this type of violation. I, therefore, issue the following Order. Order 1. Respondent, its agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations issued thereunder, and in particular, shall cease and desist from engaging in any activity for which a license is required under the Act and regulations without being licensed. 2. Respondent is assessed a civil penalty of $7,000, which shall be paid by a certified check or money order made payable to the Treasurer of the United States and shall be sent to Sharlene A. Deskins, Office of the General Counsel, Marketing Division, Room 2014, South Building, United States Department of Agriculture, Washington, DC 20250-1400. Respondent is disqualified from applying for a license under the Act until the civil penalty is paid. This Decision and Order shall become final without further proceedings 35 days after the date of service upon the Respondent, unless it is appealed to the Judicial Officer within 30 days pursuant to section 1.145 of the Rules of Practice (7 C.F.R. § 1.145). [This Decision and Order became final August 28, 1996.--Editor] 55 Agric. Dec. 789 BEEF PROMOTION AND RESEARCH ACT COURT DECISION JERRY GOETZ d/b/a JERRY GOETZ AND SONS v. DAN GLICKMAN, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE. No. 94-1299-FGT. Filed September 24, 1996. Petition for injunction to stay administrative proceedings denied - Failure to show likelihood of success on appeal - No irreparable injury. The United States District Court for the District of Kansas denied plaintiff's petition for an injunction to stay the administrative proceeding pending its appeal in Federal Court. The court found that the plaintiff failed to make the necessary showing of likelihood of success on appeal, and that the plaintiff will not suffer irreparable injury. UNITED STATES DISTRICT COURT, DISTRICT OF KANSAS THEIS, District Judge. The plaintiff brought this action challenging the constitutionality of Beef Promotion and Research Act of 1985, 7 U.S.C. § 2901 et seq. The plaintiff sought to represent a class of all persons subject to the requirements of the Act, including all persons who have been required to pay the assessment of one dollar per head of cattle sold, as required by the Act. In a memorandum and order dated February 28, 1996, this court granted the motions to dismiss filed by the defendant and intervenors and denied the plaintiff's motion for summary judgment. On February 29, 1996, judgment was entered. Thereafter, the plaintiff filed a notice of appeal. Oral argument before the Tenth Circuit Court of Appeals is scheduled for November 21, 1996. Presently pending before the court is the plaintiff's motion for injunction staying administrative case during the pendency of the appeal (Doc. 168, filed September 17, 1996). The plaintiffs seeks to stay the administrative hearing before the Department of Agriculture which is scheduled for September 25 and 26, 1996 in Wichita, Kansas. The court conducted a hearing by conference call on September 23, 1996. Following the conclusion of the hearing, the court informed counsel that it was denying the plaintiff's motion and that a memorandum and order would follow. On March 8, 1996, the Department of Agriculture resumed the administrative proceedings which had been pending against the plaintiff. This court had stayed those administrative proceedings during the pendency of this action. On March 8, 1996, the Department of Agriculture's Administrative Law Judge set the administrative hearing for July 31, 1996. In June 1996, a motion for continuance was granted and the administrative hearing was rescheduled for September 25, 1996. The parties are in agreement that the following factors are relevant to the court's determination of whether to issue an injunction pending appeal: (1) whether the plaintiff has made a strong showing of the likelihood of success on appeal; (2) whether the plaintiff will be irreparably injured; (3) whether an injunction would injure other parties; and (4) where the public interest lies. The court does not believe that plaintiff has made the necessary showing on the likelihood of success on appeal. This court followed the Third Circuit's decision in United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. denied, 493 U.S. 1094 (1990), in upholding the constitutionality of the Beef Promotion Act. This court continues to believe that the Third Circuit's decision is correct. There is no case law from any other circuit to the contrary. The plaintiff will not be irreparably injured by having to appear at a two day administrative hearing in Wichita. There has been no determination of liability under the Act, and no determination of what amounts, if any, may be due for unpaid assessments, late penalties, and civil penalties. At this time, there is nothing comparable to a money judgment which could be stayed upon the filing of a supersedeas bond. Following the hearing before the Administrative Law Judge, there would be an appeal to a judicial officer within the Department of Agriculture. If, at the conclusion of the administrative process, Goetz is ordered to pay monies and refuses to do so, the agency could initiate a collection proceeding. At that time, a stay of proceedings might be in order upon the filing of a bond in the nature of a supersedeas. If the plaintiff were to prevail on his constitutional challenge, he would be unable to obtain a refund of any monies paid because of the government's sovereign immunity. The plaintiff has suffered no harm to date, however. The inconvenience of attending a brief hearing does not constitute irreparable harm. The plaintiff's refusal to pay assessments under the Act constitutes harm to the beef promotion program established by the Act. Income that was to have been used to conduct promotion and research has not been paid. The 55 Agric. Dec. 789 government has a preliminary estimate that plaintiff owes nearly $25,000 (through the first half of 1994), not including interest or penalties. It is not in the public interest to allow the plaintiff to continue to refuse to participate in the beef promotion program established by the Act. The Act's provisions are mandatory. The plaintiff's views about the program do not justify his noncompliance. The plaintiff has delayed these administrative proceedings for approximately three years. A determination of liability, if any, under the Act needs to be made. The public interest lies on the side of requiring compliance with the Act. The court is troubled by the plaintiff's delay in filing the motion for injunction. In this court's memorandum and order of February 28, 1996, the court lifted the injunction previously in effect. The plaintiff was aware no later than March 8, 1996 that the agency was going forward with the administrative proceedings. The plaintiff had notice for several months of the hearing date, yet plaintiff waited until the last moment to file his motion for injunction. Plaintiff's failure to act promptly weighs against his claim of irreparable harm. IS BY THE COURT THEREFORE ORDERED that plaintiff's motion for injunction staying administrative case during the pendency of the appeal (Doc. 168) is hereby denied. 'The Department of Agriculture initiated the administrative proceedings against the plaintiff in October 1993. 2Plaintiff appears to have a proclivity to wait until that last minute. Plaintiff filed this action on August 2, 1994 and immediately sought to obtain a stay of the administrative hearing which was scheduled for August 8, 1994. |