UNITED STATES DEPARTMENT OF AGRICULTURE (U.S.D.A.)
IN RE: JAMES AND JULIA STUEKERJUERGEN, D/B/A CORNER VIEW KENNELS.
44 Agric. Dec. 186 (1985)
Dog broker shipping dogs under 8 weeks old was assessed civil penalty of $7,000 and license as dealer under Animal Welfare Act was suspended for 35 days, since broker was one of largest dog brokers in state, 8-week minimum age requirement was based on finding that ability of dogs to function in adult environment was adversely affected if shipped under that age, violations were serious and flagrant in view of large number of puppies shipped on 10 different occasions during 2-month period, and broker had violated Act and standards on prior occasion resulting in 12 day license suspension.
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 directing respondents to cease and desist from violating the Act and regulations, assessing a civil penalty of $2,000, and suspending respondents' license for 15 days.
On January 22, 1985, complainant, seeking a $7,500 civil penalty and a 60-day license suspension order, appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. §§ 556 and 557 (7 CFR § 2.35). [FN1] The case was referred to the Judicial Officer for decision on February 26, 1985.
Respondents concede that during the period October 12, 1982, through December 21, 1982, on 10 occasions they shipped a total of 75 dogs under 8 weeks of age, in violation of the regulations, which provide (9 CFR § 2.130):
§ 2.130 Minimum age requirements.
No dog or cat shall be delivered by any person to any carrier or intermediate handler for transportation, in commerce, except to a registered research facility, unless such dog or cat is at least eight (8) weeks of age and has been weaned.
The only issue on appeal relates to the appropriate sanction to be imposed for these violations. The Act provides for license suspension or revocation, cease and desist orders, and civil penalties for *188 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 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
**2 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 *189 good faith, and the history of previous violations. (Emphasis added.)
Respondents are one of the largest dog brokers in the State of Iowa. They reported gross income from the sale of animals of $432,723.26 for their 1982 business year. (However, respondents had a net loss of about $30,000 in 1982.)
Violation of the minimum age requirement is a serious violation of the Act. The 8-week minimum age requirement is based on "scientific data . . . [that] indicates that a puppy's familiarity with the environment and association with man occurs between five and eight weeks of age and that this conditioning to the normal environment determines the animal's ability to function in its adult environment." 42 Fed. Reg. 31,022, 31,023-24 (1977). Thus the minimum age requirement is based on a finding by the Secretary that shipment of dogs under 8 weeks of age adversely affects "the animal's ability to function in its adult environment," and is, therefore, inhumane. (The Secretary found that "major producers of puppies already observe the eight week minimum age requirement within their industry" and that "many States have regulations which prohibit dogs and cats less than eight weeks of age from entering their States" (id. at 31,024)).
Respondents' violations are also serious and flagrant in view of the large number of puppies (75) shipped on 10 different occasions during a 2-month period in violation of the regulation.
The ALJ found that there "has been discrepancy by the compliance officers in various sections of the country as to the interpretation of how the age of puppies is computed, and when a puppy can be shipped to meet the eight week old requirement" (Finding 19, Initial Decision at 8). This finding is based on the testimony of respondent Julia Stuekerjuergen that "other dealers" had told her that their compliance officers counted the day of birth as the first day in determining a puppy's age or counted the time of receipt by the retail pet shop, after shipment by the dealer, as the 56th day (Tr. 245-46). It was clear from her testimony, however, that her compliance officer never misled her about how a dog's age should be calculated (Tr. 246-47, 255). Even if respondents were given the benefit of both of these misinterpretations, it would only add 2 days to the age of the dogs (Tr. 256-57), and would leave 63 (Tr. 257) or 70 violations (Appendix A to Complainant's Original Brief). [FN2]
**3 *190 The ALJ found that "[t]here is no regulation under the Animal Welfare Act that requires a Class B dealer to obtain the whelp date of the puppies in writing prior to the shipping of those puppies" (Finding 21, Initial Decision at 9). However, 9 CFR § 2.75(a)(1)(iv)(c) requires dealers to keep records showing date of birth, if known, and 9 CFR § 2.79 requires health certificates prior to shipment. As Earl Stuekerjuergen acknowledged, these certificates certify that the dogs to be shipped are 8 weeks of age (Tr. 294- 95). Finally, the requirements of 9 CFR § 2.130 are clear. If respondents choose to act before they have information necessary to be sure they are not violating the law, they voluntarily assume the risk that the dogs may not be 8 weeks of age. Such "careless disregard of these simple requirements" is not a mitigating factor. See In re Stuekerjuergen, 36 Agric. Dec. 964, 969 (1977).
The ALJ states (Initial Decision at 9-10):
24. There are mitigating circumstances in this case that have been considered, i.e.:
A. That Corner View Kennels has done business with Johnny J. Wood, d.b.a PJ's Pet Farm for approximately four years.
B. That seventy-one of the seventy-five dogs involved in the violations above referred to, were purchased from Johnny J. Wood, d.b.a PJ's Pet Farm.
C. That Johnny J. Wood, d.b.a PJ's Pet Farm, is a licensed Class B dealer under the Animal Welfare Act. A Complaint filed July 11, 1984, AWA Docket No. 294, charged said Johnny J. Wood with violations of the Animal Welfare Act [relating to animals not involved in this case].
D. That the Respondents have purchased a considerable number of puppies from Johnny J. Wood, d/b/a PJ's Pet Farm, over the period of approximately four years.
E. That due to the long-standing relationship between these Respondents and Johnny J. Wood, there has developed a mutual trust whereby the Respondents herein did not question Johnny J. Wood with regard to the whelp dates of the seventy-one puppies purchased from him, and assumed that any puppies that were delivered to their *191 place of business by said Johnny J. Wood, were, of necessity, eight weeks of age, for the reason that Johnny J. Wood, being a Class B licensed holder, would be bound by the same rules governing the shipping age of puppies that bound the Respondents herein.
However, the ALJ ignores two crucial points. First, 9 CFR § 2.130 only prohibits delivery of a dog or cat under 8 weeks of age by any person "to any carrier or intermediate handler for transportation, in commerce." Mr. Wood testified that he personally transported dogs to Corner View Kennels, or one of his employees transported them, or one of respondents' employees transported them (Tr. 279). In delivering dogs to Corner View Kennels, Mr. Wood did not deliver them to a "carrier or intermediate handler." Licensed dealers, such as respondents and Mr. Wood, are expressly excluded from the definition of an intermediate handler set out at 7 U.S.C. § 2132(i) and 9 CFR § 1.1(bb). Accordingly, respondents had no basis for assuming that dogs delivered to them by Mr. Wood were 8 weeks old since the regulation, 9 CFR § 2.130, did not apply to the transfer of dogs from Mr. Wood to respondents.
**4 Second, the ALJ's reliance on this "mitigating" factor ignores the settled principle that the legal duties imposed by the Animal Welfare Act are personal and nondelegable. See In re Esposito, 38 Agric. Dec. 613, 621 (1979).
The ALJ states (Initial Decision at 8):
20. Any sanction imposed is going to be a deterrent to other Class B dealers for the reason that this is the first adjudicated complaint filed under this particular section of the Animal Welfare Act and other dealers are watching it and are very aware and concerned about it.
However, this fact would not lead to a reduced sanction but, rather, illustrates the need for a sanction that will serve as an effective deterrent to future violations not only by respondents, but by other dealers.
It is the policy of this Department to impose severe sanctions for serious violations of any of the regulatory programs administered by the Department to serve as an effective deterrent not only to the respondents but also to other potential violators. This policy has been followed in all of the Department's disciplinary proceedings in recent years.
The basis for the Department's sanction policy is set forth at great length in numerous decisions, e.g., In re Worsley, 33 Agric. *192 Dec. 1547, 1556- 71 (1974), [FN3] set forth in the Appendix to this decision. [FN4] The Department's sanction policy is also discussed at length in In re Esposito, 38 Agric. Dec. 613, 624-65 (1979).
In addition, the Secretary is directed by 7 U.S.C. § 2149(b) to consider prior violations in determining a proper sanction. Respondents were found to have violated the Act and standards on a prior occasion, relating to other matters, and their license was suspended for 12 days. In re Stuekerjuergen, 36 Agric. Dec. 964, 970 (1977). A second adjudicated violation merits a more severe sanction than a first offense. 7 U.S.C. § 2149(b); In re Radzilowski, 35 Agric. Dec. 1718, 1720-21 (1976); In re Christ, 35 Agric. Dec. 195, 201-02 (1976).
Although great weight is given to the recommendations by administrative officials as to the sanction (Appendix at 20a-21a), the administrative recommendation here appears to be more Draconian than "severe". Considering all of the circumstances in this case, the following order should be issued.
Respondents, their agents, employees, successors, and assigns, acting directly or indirectly, or through any corporation, partnership, trust, or other device whatsoever, shall ceases and desist from shipping dogs in violation of 9 CFR § 2.130 and shall cease and *193 desist from violating any and all other provisions of the Animal Welfare Act, 7 U.S.C. §§ 2131-56 (1982), and the regulations and standards issued under the Act. 9 CFR §§ 1.1-3.142 (1984). I11Respondents are hereby assessed a civil penalty of $7,000, which shall be paid within 30 days after service of this order by certified check or money order payable to the Treasurer of the United States and forwarded to counsel for complainant, Gary C. Shockley, Esq., at the following address: Office of the General Counsel, United States Department of Agriculture, Room 2014-South Building, Washington, D.C. 20250.
**5 Respondents' license as a dealer under the Animal Welfare Act is hereby suspended for a period of 35 days.
The cease and desist provisions of this Order shall become effective on the day after service of this Order. The suspension provisions shall become effective on the 30th day after service of this Order.
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. Four of the dogs involved here were 42 days old, 3 were 44 days old, 2 were 45 days old, 1 was 47 days old, 7 were 48 days old, 15 were 49 days old, 10 were 50 days old, 7 were 51 days old, 14 were 52 days old, 7 were 53 days old, and 5 were 54 days old.
FN3. The Department's severe sanction policy did not originate with Worsley, but, rather, was mentioned briefly in the first decision issued by the present Judicial Officer, In re Henner, 30 Agric. Dec. 1151, 1263-64 (1971), and was further developed in numerous other decisions before it was finalized in In re Miller, 33 Agric. Dec. 53, 64-80 (1974), aff'd per curiam, 498 F.2d 1088 (5th Cir. 1974).
FN4. Severe sanctions issued pursuant to this policy were sustained, e.g., in In re Collier, 38 Agric. Dec. 957, 971-72 (1979), aff'd, 624 F.2d 190 (9th Cir. 1980); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1362-63 (1978), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980); In re Muehlenthaler, 37 Agric. Dec. 313, 330-32, 337-52, aff'd mem., 590 F.2d 340 (8th Cir. 1978); In re Mid-States Livestock, Inc., 37 Agric. Dec. 547, 549-51 (1977), aff'd sub nom. Van Wyk v. Bergland, 570 F.2d 701 (8th Cir. 1978) In re Cordele Livestock Co., 36 Agric. Dec. 1114, 1133-34 (1977), aff'd per curiam, 575 F.2d 879 (5th Cir. 1978); In re Livestock Marketers, Inc., 35 Agric. Dec. 1552, 1561 (1976), aff'd per curiam, 558 F.2d 748 (5th Cir. 1977), cert. denied, 435 U.S. 968 (1978); In re Catanzaro, 35 Agric. Dec. 26, 31-32 (1976), aff'd, No. 76-1613 (9th Cir. Mar. 9, 1977), printed in 36 Agric. Dec. 467; In re Maine Potato Growers, Inc., 34 Agric. Dec. 773, 796, 801 (1975), aff'd, 540 F.2d 518 (1st Cir. 1976); In re M. & H. Produce Co., 34 Agric. Dec. 700, 750, 762 (1975), aff'd, 549 F.2d 830 (D.C. Cir.), cert. denied, 434 U.S. 920 (1977); In re Southwest Produce, Inc., 34 Agric. Dec. 160, 171, 178, aff'd per curiam, 524 F.2d 977 (5th Cir. 1975); In re J. Acevedo & Sons, 34 Agric. Dec. 120, 133, 145-60, aff'd per curiam, 524 F.2d 977 (5th Cir. 1975); In re Marvin Tragash Co., 33 Agric. Dec. 1884, 1913-14 (1974), aff'd, 524 F.2d 1255 (5th Cir. 1975); In re Trenton Livestock, Inc., 33 Agric. Dec. 499, 515, 539-50 (1974), aff'd per curiam, 510 F.2d 966 (4th Cir. 1975); In re Miller, 33 Agric. Dec. 53, 64-80, aff'd per curiam, 498 F.2d 1088, 1089 (5th Cir. 1974).
**6 Excerpt from In re Worsley, 33 Agric. Dec. 1547, 1556-71 (1974). [Excerpt omitted.-Ed.]