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UNITED STATES DEPARTMENT OF AGRICULTURE (U.S.D.A.)

IN RE: MARLIN U. ZARTMAN D/B/A GILBERTSVILLE SALES STABLES.
United States
44 Agric. Dec. 174 (1985)


Case Details
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Summary:   Secretary is authorized to promulgate standards applicable to operator of auction sale as to care, treatment, housing, feeding, watering, and sanitation of animals, since literal language of 7 USCS § 2142 and its legislative history gives Secretary broad authority to impose on auction operator standards of humane handling of all animals subject to Animal Welfare Act, and although construing word "handling" in § 2143 broad enough to include those areas would nullify significance and effect of additional terms, contemporaneous construction of Act by administrative officials charged with responsibility for achieving congressional purpose of ensuring humane care and treatment of animals indicates Secretary has authority to impose such standards on auction operators.

Judge Dorothea A. Baker, Administrative Law Judge delivered the opinion of the court.


Opinion of the Court:

DECISION AND ORDER

This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. § 2131 et seq.), and the regulations and standards issued thereunder (9 CFR § 1.1 et seq.). On December 19, 1984, Administrative Law Judge Dorothea A. Baker (ALJ) issued an initial decision and order dismissing the complaint.

On February 19, 1985, complainant, seeking a $2,000 civil penalty, a cease and desist order, and a 60-day license suspension order, appealed to the Judicial Officer, to whom final administrative authority *175 has been delegated to decide the Department's cases subject to 5 U.S.C. §§ 556 and 557 (7 CFR § 2.35). [FN1]

Based upon a careful consideration of the entire record, I believe that the complaint should be dismissed, but for different reasons than those expressed by the ALJ.

FINDINGS OF FACT

1. Marlin U. Zartman, d/b/a Gilbertsville Sales Stables, is an individual whose mailing address is Marlin U. Zartman, 355 Tolegate Road, Douglassville, PA 19519.

2. At all times material herein, respondent was an operator of an auction sale under the Animal Welfare Act, as amended, and was licensed under the Animal Welfare Act, as amended, as a Class B dealer.

3. At the time respondent's license No. 23 CE was issued on May 31, 1972, respondent received a copy of the regulations and standards contained in Title 9, Chapter 1, Subchapter A, of the Code of Federal Regulations and agreed to comply with said regulations and standards.

**2 4. On February 26, 1983, respondent's premises were inspected and found to be in the following condition:

A. In an area under respondent's bleachers where dogs were held, no light was installed, and insufficient lighting existed to permit proper, routine inspections. This condition was also noted in an inspection on December 18, 1982.

B. Some primary enclosures (cages) were not structurally sound and maintained in good repair in that some cages holding rabbits had wire ends sticking inside, rusty floors, or missing parts of the backs. This condition was also noted in an inspection on December 18, 1982, as were similar conditions involving some cages holding dogs, cats, and guinea pigs.

C. One primary enclosure (consisting of two cages combined) holding four puppies did not allow sufficient space for the animals to make normal postural adjustments. A similar condition was noted in an inspection on December 18, 1982, involving two cages for rabbits.

*176 CONCLUSIONS

I. Jurisdiction

At the outset, respondent raises a serious question as to whether the Secretary is authorized to promulgate standards applicable to the operator of an auction sale as to the care, treatment, housing, feeding, watering, and sanitation of animals. Section 12 of the Act provides (7 U.S.C. § 2142):

§ 2142. Humane standards and recordkeeping requirements at auction sales

The Secretary is authorized to promulgate humane standards and recordkeeping requirements governing the purchase, handling, or sale of animals, in commerce, by dealers, research facilities, and exhibitors at auction sales and by the operators of such auction sales. The Secretary is also authorized to require the licensing of operators of auction sales where any dogs or cats are sold, in commerce, under such conditions as he may prescribe, and upon payment of such fee as prescribed by the Secretary under section 2153 of this title.

If § 12 of the Act is read by itself, no serious question is presented as to the Secretary's authority. That is, the authority given to the Secretary to promulgate humane standards governing the "handling" of animals by operators of auction sales would clearly authorize the standards at issue here.

In addition, the Secretary is authorized by § 12 of the Act to license the operators of auction sales where dogs or cats are sold "under such conditions as he may prescribe." Dogs and cats are sold at respondent's auction, and the Secretary has prescribed that auction operators must comply with the standards for other animals subject to the Act, as well as dogs and cats (9 CFR § 2.100(a)). That is, one of the conditions the Secretary has prescribed is (9 CFR § 2.100(a)):

§ 2.100 Compliance with standards.

(a) Each dealer, exhibitor, operator of an auction sale, and research facility shall comply in all respects with the standards set forth in Part 3 of this subchapter setting forth the standards for the humane handling, care, treatment, and transportation of animals. . . .

**3 The "standards set forth in Part 3 of this subchapter" are the standards that are involved in this case (9 CFR § 3.1 et seq.). Hence, pursuant to the authority in § 12 of the Act, the Secretary has prescribed *177 broad and exacting standards, applicable to all animals subject to the Act, that must be complied with by auction operators.

The legislative history of the Animal Welfare Act of 1970, which added the provisions as to auction operators, states as to § 12 (H.R. Rep. No. 91- 1651, 91st Cong., 2d Sess. 11 (1970)):

Section 13.-This section [i.e., § 12 of the Act] would also authorize the Secretary to license the operators of auction sales, where any dogs or cats are sold and such sales are affecting commerce. In addition, the section would extend the recordkeeping and standards of humane handling under the Act to the purchase, handling, and sale of animals, as defined in the bill, rather than only dogs or cats, at auction sales by dealers, research facilities, exhibitors and by the operators of the auction sales.

Hence it would appear from the literal language of § 12 and its legislative history that § 12 gives the Secretary broad authority to impose on auction operators standards of humane handling of all animals subject to the Act.

The ambiguity in this case arises when § 12 of the Act, quoted above, is read in conjunction with § 13 of the Act, which does not expressly apply to auction operators. [FN2] Section 13 provides (7 U.S.C. § 2143(a)):

§ 2143. Humane standards for animals transported in commerce

(a) Authority of Secretary to promulgate standards

The Secretary shall promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors. Such standards shall include minimum requirements with respect to handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, including the appropriate use of anesthetic, analgesic or tranquilizing drugs, when such use would be proper in the opinion of the attending veterinarian of such research facilities, and separation by species when the Secretary finds such separation necessary *178 for the humane handling, care, or treatment of animals. The Secretary shall also promulgate standards to govern the transportation in commerce, and the handling, care, and treatment in connection therewith, by intermediate handlers, air carriers, or other carriers, of animals consigned by any dealer, research facility, exhibitor, operator of an auction sale, or other person, or any department, agency, or instrumentality of the United States or of any State or local government, for transportation in commerce. The Secretary shall have authority to promulgate such rules and regulations as he determines necessary to assure humane treatment of animals in the course of their transportation in commerce including requirements such as those with respect to containers, feed, water, rest, ventilation, temperature, and handling. (Emphasis added.)

**4 In § 13 of the Act, quoted immediately above, it would appear that the word "handling" is used in a manner that does not include "care," "treatment," "housing," "feeding," "watering," "sanitation," "ventilation," "veterinary care," and "shelter from extremes of weather and temperatures." To construe the word "handling" in § 13 of the Act as broad enough to include all of such other terms would make the additional terms in § 13 surplusage. "No rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that 'significance and effect shall, if possible, be accorded to every word. As early as in Bacon's Abridgment, sect. 2, it was said that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.""' Ex Parte Public Nat'l Bank of NY, 278 U.S. 101, 104 (1928).

Nonetheless, this is remedial legislation "to insure that animals . . . are provided humane care and treatment" (7 U.S.C. § 2131(1)), and it has been the settled and contemporaneous construction of the Act by the administrative officials charged with the responsibility for achieving the congressional purpose that the Secretary has authority to impose on auction operators the standards involved in this proceeding. Although the issue is not free from doubt, I believe that the Secretary acted within his statutory authority.

II. Respondent's Violations

A. Inadequate Lighting

The Standards provide (9 CFR § 3.2(c)):

(c) Lighting. Indoor housing facilities for dogs or cats shall have ample light, by natural or artificial means, or *179 both, of good quality and well distributed. Such lighting shall provide uniformly distributed illumination of sufficient light intensity to permit routine inspection and cleaning during the entire working period. Primary enclosures shall be so placed as to protect the dogs or cats from excessive illumination.

Complainant's witnesses testified that in an area under respondent's bleachers where dogs were held, no light was installed and they were forced to use flashlights to inspect the dogs. There is no evidence to the contrary. In fact, respondent conceded that there was no light in that area at the time of the inspection. He testified (Tr. 160):

Q. NOW, YOU HEARD THE TESTIMONY THAT THERE WAS NO LIGHT IN THE AREA UNDER THE BLEACHERS AT THE TIME OF THE VISIT BY DOCTOR SANZ. IS THAT CORRECT?

A. THAT'S CORRECT.

Q. DID YOU SUBSEQUENTLY HAVE A LIGHT INSTALLED IN THAT AREA?

A. YES. IMMEDIATELY AFTER HER LAST INSPECTION THERE WAS TWO FEDERAL INSPECTORS CAME DOWN TO CHECK IT AND OKAYED IT.

Accordingly, the undisputed evidence proves that respondent violated the lighting standard, as alleged in the complaint.

Although the ALJ concluded that respondent did not violate the lighting standard, her findings show clearly that the lighting standard was violated. Specifically, the ALJ found (Initial Decision at 7-9):

**5 15. The evidence in this proceeding is that there were no cats held under the bleachers but that there were dogs under the bleachers which bleachers were sealed in to assure the safety of the dogs. The prior inspector, Dr. Moore, advised Respondent to put dogs there. The cages used under the bleachers were of a mobile nature. At the time of the inspection, none of the investigators asked that the mobile cages be moved out and they did inspect the area with flashlights. Although at the time of Dr. Sanz's investigation, February 26, 1983, there was no light under the bleachers, the Respondent subsequently had a light installed in order to satisfy Dr. Sanz's criticism. At the time of the inspections by the government inspectors, they were *180 given free access to go under the bleachers and look at the animals and the government inspectors carried flashlights with them. The dogs were held there for only a short time. The Complaint does not allege and the evidence does not indicate that the animals under the bleachers were in any way mistreated; the crux of the alleged violation was that there was no light. The Regulations and Standards do not specifically require a light. It is noted that most human beings spend part of a 24 hour period in the dark (when they are asleep) and without having any specific requirement for a light, this does not constitute a violation of the Regulations and Standards. It is not known whether airlines and railroads are required to have lights in their transportation facilities for animals. However, it is noted that the Respondent has sought to be fully cooperative with the government inspectors, and when this matter was brought to his attention, he did install a light.

16. Dr. Sanz also admitted that she was able to see the animals in this area for inspection purposes through use of a flashlight. It was established that the animals were in mobile cages, but that neither Dr. Sanz or Kenneth Swartz, the APHIS Compliance Officer, who accompanied her on February 26, 1983, requested auction personnel to roll out the cages to get a better look at them. Mr. Swartz further admitted that there was nothing wrong wth keeping dogs in the area under the bleachers so long as light was provided.

17. It was established, through photographic evidence, that lighting was subsequently installed in the area in question.

18. Respondent testified, without contradiction, that no federal inspector, prior to the visits by Dr. Sanz in December, 1982 and February 1983, had ever told him that he had to install lights under the bleachers. That fact is also reflected by the earlier APHIS inspection sheets relating to Respondent's facility. No violation of 9 CFR 3.2 has been shown.

Although as noted by the ALJ, the regulations and standards "do not specifically require a light," they specifically require "ample light, by natural or artificial means, or both, of good quality and well distributed," which "shall provide uniformly distributed illumination *181 of sufficient light intensity to permit routine inspection and cleaning" (9 CFR § 3.2(c)). That standard was clearly violated.

**6 However, the record indicates that this was not a serious violation. There is no indication that the requirement for adequate lighting is to prevent the animals from experiencing fear or stress, but, rather, to permit adequate inspection and cleaning. Moreover, the violation was not regarded as of sufficient importance to warrant mentioning by a number of Department inspectors.

B. Soundness of Primary Enclosures (Cages)

The Standards provide as to primary enclosures (cages) (9 CFR § 3.4, .28, .53):

§ 3.4 Primary enclosures.

All primary enclosures for dogs and cats shall conform to the following requirements:

(a) General-(1) Requirements for primary enclosures for dogs and cats. (i) Primary enclosures shall be structurally sound and maintained in good repair to protect the dogs and cats from injury, to contain them, and to keep predators out.

§ 3.28 Primary enclosures.

All primary enclosures for guinea pigs and hamsters shall conform to the following requirements:

(a) General. (1) Primary enclosures shall be structurally sound and maintained in good repair to protect the guinea pigs and hamsters from injury.

§ 3.53 Primary enclosures.

All primary enclosures for rabbits shall conform to the following requirements:

(a) General. (1) Primary enclosures shall be structurally sound and maintained in good repair to protect the rabbits from injury, to contain them, and to keep predators out.

The undisputed evidence shows that on December 18, 1982, and February 26, 1983, some of respondent's cages had wire ends sticking inside, rusty floors, or missing parts of the backs. There is no evidence that any animals were injured as a result of this deficiency, *182 but there was a slight possibility (but not a real likelihood) of injury.

The undisputed evidence also shows that respondent was attempting in good faith to maintain the structural soundness of his cages, that some persons had broken into some of the cages in order to remove animals, that he was in the process of repairing the cages, and, in fact, had sufficient sound cages by the time of the second inspection that all of the animals subject to the Act could have been housed in sound cages. Respondent had instructed his employee to place the animals involved here in sound cages, but due to employee error, some of the animals subject to the Act were placed in unsound cages. That employee was subsequently removed from his position.

Considering all of the evidence in this case, including photographic evidence, the violations of this standard were trifling in nature.

C. Size of Primary Enclosures (Cages)

The Standards provide (9 CFR § 3.4(b), .53(b)):

(b) Space requirements-(1) Dogs and cats. Primary enclosures shall be constructed and maintained so as to provide sufficient space to allow each dog and cat to turn about freely and to easily stand, sit and lie in a comfortable normal position.

**7 (b) Space requirements. Primary enclosures shall be constructed and maintained so as to provide sufficient space for the animal [i.e., rabbit] to make normal postural adjustments with adequate freedom of movement.

The evidence shows that on December 18, 1982, two cages for rabbits did not permit the rabbits to make normal postural adjustments with adequate freedom of movement, and on February 26, 1983, one enclosure (consisting of two cages combined) holding four puppies was not quite large enough to permit the animals to make normal postural adjustments.

The evidence, including photographs of the enclosure holding the four puppies, indicates that the enclosures did not quite meet the space requirements, but that the space was adequate to prevent any serious inconvenience or stress to the animals.

D. Veterinary Care

The Standards provide (9 CFR § 3.10):

§ 3.10 Veterinary care.

*183 (a) Programs of disease control and prevention, euthanasia, and adequate veterinary care shall be established and maintained under the supervision and assistance of a doctor of veterinary medicine.

The evidence shows that respondent established and maintained a program of disease control and prevention under the supervision and assistance of a doctor of veterinary medicine. Dr. John Patt, a veterinarian licensed by the State of Pennsylvania, attends every sale at respondent's auction. No animals are held overnight at respondent's auction, which is held every Saturday beginning at 7:00 p.m. Most animals arrive Saturday afternoon after 3:00 p.m., although some animals arrive Saturday morning. Dr. Patt arrives at about 4 o'clock or 4:30 p.m. every Saturday and checks each animal for any symptoms of sickness. If an animal has any symptoms of sickness, he tags the cage so that the animal will not be sold, and the animal is returned to the owner.

Complainant contends that respondent violated the veterinary care standard because several sick cats were accepted for sale by respondent's employee on February 26, 1983, and several sick dogs and cats were accepted for sale on December 18, 1982. There is no contention by complainant that Dr. Patt would not have detected such animals during his routine examination prior to sale, but complainant contends that respondent's employee should not have accepted the animals in the first place.

Respondent had instructed his employee not to accept any sick animals and, after learining that this employee had accepted several sick animals, respondent removed him from that position.

Complainant apparently believes that the program of disease control and prevention established and maintained by an auction operator must be perfect, at least insofar as preventing the receipt of any animal which could be diagnosed by a layman as sick. However, the standard is not drafted in terms of perfection. No requirement of excellence or perfection is expressed in the standard. Assuming that the rule of reason can be read into the standard, it is not unreasonable for an employee occasionally to miss a few animals that should have been rejected, particularly where a veterinarian later checks each animal to insure that no sick animal will be sold.

**8 If complainant wants to require perfection in the exclusion of animals that could be determined to be sick by a layman, complainant will have to rewrite the standard to impose such a requirement. As long as the regulation merely requires that a program of disease control and prevention be established and maintained under the supervision and assistance of a doctor of veterinary *184 medicine, where, as here, such a program is established in good faith, no violation will be established merely by proof that an employee inadvertently received a few sick animals (which presumably would have been detected by the veterinarian).

Even if the regulation were rewritten, as referred to above, the violations in this case would have been regarded as trivial.

E. Chipped Edges on Water Receptacles

The Standards provide (9 CFR § 3.6):

§ 3.6 Watering.

If potable water is not accessible to the dogs and cats at all times, potable liquids shall be offered to such animals at least twice daily for periods of not less than 1 hour, except as might otherwise be required to provide adequate veterinary care. Watering receptacles shall be kept clean and shall be sanitized at least once every 2 weeks.

Complainant contends that this standard was violated, or, in the alternative, that the standards relating to facilities (9 CFR § 3.1) or primary enclosures (9 CFR § 3.4) were violated, because on February 26, 1983, several watering receptacles for dogs and cats had sharp, chipped edges.

However, there is nothing in 9 CFR § 3.1, .4, or .6 that expressly, or by implication, prohibits watering receptacles with chipped edges. Perhaps the standards should be amended to impose such a requirement. But in view of the detailed and extensive nature of the standards that have been promulgated, additional requirements cannot be added by implication.

Here, again, even if the standards were rewritten, as referred to above, the violations in this case would have been regarded as trivial.

III. No Sanction Should Be Imposed

The Act provides for license suspension or revocation, cease and desist orders, and civil penalties for violations of the regulations or standards. Specifically, the Act provides (7 U.S.C. § 2149):

§ 2149. Violations by licensees

(a) Temporary license suspension; notice and hearing; revocation

If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or *185 regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred.

(b) Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order

**9 Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $1,000 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals. 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 the history of previous violations. (Emphasis added.)

Complainant instituted a formal complaint against respondent because the violations detected on December 18, 1982, were not eliminated by February 26, 1983. [FN3]

However, the violations detected on both dates were of a trivial nature, not posing any serious threat to the well-being of the animals. *186 Respondent has been in the animal auction business for about 32 years, and, except for the trivial violations involved here, respondent had a long, unblemished record of compliance with federal and state requirements applicable to his animal auction. There is nothing in this record that indicates the need for any type of disciplinary order as to respondent for the trivial violations found here.

Parties involved in disciplinary proceedings before this Department are not only permitted, but encouraged, to introduce evidence indicating why the violations involved in a particular proceeding are serious, and the type of disciplinary order that is warranted in the particular proceeding. [FN4] Complainant introduced no such evidence. In addition, the testimony and photographs in this case fail to reveal any serious violations warranting the imposition of a sanction. Accordingly, the complaint should be dismissed.

ORDER

The complaint is dismissed with prejudice.

FN1. The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1068 (1982). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program).

FN2. As noted by complainant, the Department has consistently construed the term "dealer" to include "auction operators." However, to say the least, some ambiguity arises from the fact that § 12 of the Act applies, inter alia, to "dealers" and "operators of such auction sales," whereas § 13 applies expressly to "dealers," but not to operators of auction sales.

FN3. In determining whether violations occurred and what sanctions should be imposed for violations, the licensee is responsible for the acts of his employees. In re Esposito, 38 Agric. Dec. 613, 621 (1979).

FN4. In re Peterman, 42 Agric. Dec._____(Dec. 12, 1983), appeal docketed, No. 84-1053 (10th Cir. Jan. 13, 1984); In re Hatcher, 41 Agric. Dec. 662, 669 n.3 (1982); In re Rowland, 40 Agric. Dec. 1934, 1950 n.9 (1981), aff'd, No. 82-3015 (6th Cir. July 13, 1983); In re King Meat Co., 40 Agric. Dec. 1910, 1919 (1981) (order denying reopening), aff'd, No. CV 81-6485 (C.D. Cal. Oct. 20, 1982), appeal docketed, No. 82-6029 (9th Cir. Nov. 12, 1982); In re Baltimore Tomato Co., 39 Agric. Dec. 412, 416 (1980); In re Esposito, 38 Agric. Dec. 613, 656-63 (1979); In re National Meat Packers, Inc., 38 Agric. Dec. 169, 177 n.6 (1978); In re Loretz, 36 Agric. Dec. 1087, 1096 (1977); In re Christ, 35 Agric. Dec. 195, 203 n.8 (1976); In re Overland Stockyards, Inc., 34 Agric. Dec. 1808, 1854-55 (1975); In re Speight, 33 Agric. Dec. 280, 310-13 (1974); In re Miller, 33 Agric. Dec. 53, 80, aff'd per curiam, 498 F.2d 1088, 1089 (5th Cir. 1974); In re Professional Commodity Serv., Inc., 32 Agric. Dec. 585, 586-91 (remand order), second remand order, 32 Agric. Dec. 592 (1973), final decision, 33 Agric. Dec. 14 (1974); In re Andrews, 32 Agric. Dec. 553, 579 (1973); In re Sy B. Gaiber & Co., 31 Agric. Dec. 474, 505 n.20, reconsideration denied, 31 Agric. Dec. 843, 847-50 (1972); In re American Fruit Purveyors, Inc., 30 Agric. Dec. 1542, 1596 n.39 (1971).

 

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