                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1872



BENJAMIN SUDANO; BRIAN SUDANO,

                                                        Petitioners,

           versus


UNITED STATES DEPARTMENT OF AGRICULTURE,

                                                         Respondent.


On Petition for Review of an Order of the United States Department
of Agriculture. (PACA-APP 02-0001)


Argued:   February 2, 2005                   Decided:   May 13, 2005


Before WILKINS, Chief Judge, WIDENER, Circuit Judge, and Robert E.
PAYNE, United States District Judge for the Eastern District of
Virginia, sitting by designation.


Petition for review denied by unpublished per curiam opinion.


ARGUED: Kenneth David Federman, ROTHBERG & FEDERMAN, P.C.,
Bensalem, Pennsylvania, for Petitioners. Stephen Michael Reilly,
Senior Counsel, UNITED STATES DEPARTMENT OF AGRICULTURE, Office of
General Counsel, Washington, D.C., for Respondent. ON BRIEF: James
Michael Kelly, Deputy General Counsel, Margaret M. Breinholt,
Assistant General Counsel, UNITED STATES DEPARTMENT OF AGRICULTURE,
Office of General Counsel, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      Benjamin Sudano and Brian Sudano seek review of a decision of

the United States Department of Agriculture, finding that they were

“responsibly connected”1 to Lexington Produce Co. during the period

the   company    was   found   to    be   in   violation   of    the   Perishable

Agricultural Commodities Act, as amended, 7 U.S.C. §§ 499a-499s

(the Act).       On review, the Sudanos assert that they were not

“responsibly connected” with Lexington Produce Co. between May 1999

and January 2000, the period during which Lexington Produce Co.

violated 7 U.S.C. § 499b(4), § 2(4) of the Act, for failing to make

“full payment promptly” of $915,115.25 of payments owed to multiple

produce suppliers of perishable agricultural commodities.

      We have jurisdiction to entertain this petition because it is

from a final order of the Secretary of Agriculture.               See 28 U.S.C.

§ 2342.

      In   a    thorough   and      detailed    opinion,   the    Secretary   of

Agriculture found that the Sudanos were “responsibly connected”

with Lexington Produce Co. between May 1999 and January 2000.                 In

re Benjamin Sudano, PACA-APP Docket No. 02-0001 (May 21, 2004). In

accordance with that decision, we are of opinion and hold that




      1
      “Responsibly connected” is defined as “affiliated or
connected with a commission merchant, dealer, or broker as (A) a
partner in a partnership, or (B) officer, director, or holder of
more than 10 per centum of the outstanding stock of a corporation
or association.” 7 U.S.C. § 499a(b)(9).

                                          2
Benjamin Sudano and Brian Sudano were “responsibly connected” with

Lexington Produce Co. during the period in question.

      We note that the Secretary held administrative hearings on

four occasions in three cities, at which hearings oral testimony

and   documentary   evidence   were       taken.     During   the   period   in

question, May, 1999 - January, 2000, Benjamin Sudano and Brian

Sudano owned 100 percent of the outstanding stock of Lexington

Produce Co., 50% each; Benjamin Sudano was the vice president and

secretary of Lexington Produce Co., Brian Sudano was the president

and treasurer; and both defendants also worked in the business

upward of 10 to 13 hours every day of the week, including weekends.

During the period May-November, 1999, the Sudanos, together with

one John Alascio, controlled the business; and for the November,

1999 - January, 2000 period, the Sudanos alone controlled the

business.

      Based on these facts and other findings of the Secretary, the

Secretary correctly found that the defendants failed to prove under

7 U.S.C. § 499a(b)(9), by a preponderance of the evidence, that

they were not “responsibly connected” with their company. Being of

opinion the order of the Secretary under review is supported by

substantial   evidence   and   is     free    from   reversible     error,   we

accordingly deny the petition for review on the opinion of the

Secretary of Agriculture.      PACA-APP Docket No. 02-0001, filed May

21, 2004.


                                      3
The petition for review is accordingly

                                         DENIED.




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