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

IN RE: ROSIA LEE ENNES
United States
45 Agric. Dec. 540 (1986)


Case Details
Printable Version
Summary:   Civil penalty of $1,000 against unlicensed dealer was appropriate under 7 USCS § 2149(b), and greater penalty could have been requested where although moderate size of kennel suggested modest penalty, selling hundreds of dogs without license over 40-month period was grave violation of Animal Welfare Act, violations were not committed in good faith since dogs were knowingly and intentionally sold without license after receiving 4 warnings, and even though dealer thought mistakenly that Department would not prosecute her for such violations and there was no history of previous violations, the hundreds of violations proven were sufficient to warrant severe sanction.

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 October 11, 1985, Administrative Law Judge Dorothea A. Baker (ALJ) issued an initial Decision and Order directing respondent to cease and desist from selling dogs in commerce without a license and violating the Act and regulations, and assessing a suspended civil penalty of $200.

On November 18, 1985, complainant, seeking a $1,000 civil penalty (with no more than half suspended), 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 December 21, 1985.

Based on a careful consideration of the entire record in this case, I am assessing a civil penalty of $1,000. The preliminary statement *541 and findings of fact are taken from the ALJ's initial decision, except that Findings 8, 10, 11, 15, 17, 18, and 20 are omitted, and one sentence in Finding 19 is omitted. Additional findings and conclusions by the Judicial Officer follow the ALJ's preliminary statement and findings.

ADMINISTRATIVE LAW JUDGE'S PRELIMINARY STATEMENT AND FINDINGS

This is an administrative proceeding initiated by a Complaint filed September 14, 1983, wherein the Respondent was charged with having violated the Regulations and Standards (9 CFR 1.1, et seq.) issued pursuant to the Animal Welfare Act, as amended (7 U.S.C. 2131, et seq.), hereinafter sometimes referred to as the Act. The Complaint herein avers that the Respondent at all times material herein was unlicensed but was operating as a "dealer" as that term is defined in section 2(f) of the Act (7 U.S.C. 2132(f)).

**2 The Complaint further alleges that between January 1980 and April 1983 Respondent on numerous occasions, for compensation, sold and offered for transportation in commerce, a total of 383 dogs, without being licensed as a dealer as required by section 4 of the Act (7 U.S.C. 2134). It is further alleged that on the dates of November 10, 1979, May 23, 1980, and April 23, 1981, Respondent's facilities were inspected by Animal and Plant Health Inspection Service personnel as a prerequisite for obtaining a license and that on each such occasion Respondent was notified "that deficiencies existed which would preclude licensing."

In its Complaint, the Complainant seeks a sanction of a Cease and Desist Order and the imposition of a monetary penalty of $2500.00, which on brief, it reduces to $1000.00.

An oral hearing was held on May 23, 1985, in Cassville, Missouri, before Administrative Law Judge Dorothea A. Baker. At that time the Complainant was represented by Gary C. Shockley, Esquire, Office of the General Counsel, United States Department of Agriculture, Washington, D. C. 20250-1400, and the Respondent appeared pro se. The parties were given the opportunity to file Briefs herein. The Complainant filed its Brief on June 21, 1985, and Respondent, on July 22, 1985. Complainant filed no Reply Brief.

FINDINGS OF FACT

1. Rosia Lee Ennes, hereinafter sometimes referred to as the Respondent, is an individual whose post office address is Route 2, Box 2001, Seligman, Missouri 65745.

2. Respondent became licensed as a dealer under the Animal Welfare Act for the first time on October 12, 1983.

*542 3. The evidence establishes that between January 1980 and April 1983, Respondent, on numerous occasions, for compensation, sold and offered for transportation in commerce between 300 and 400 dogs, without being licensed as a dealer as required by section 4 of the Animal Welfare Act (7 U.S.C. section 2134).

4. Commencing in October 1979 the Respondent sought to obtain a license and filled out an application form therefor together with the help of a friend, Mr. Hughes, whose qualifications are set forth hereinafter, which application the Respondent testified was sent into the Department of Agriculture. However, the Respondent later was advised that it was never received.

5. The Complainant maintains that on November 10, 1979, May 23, 1980, April 23, 1981, June 3, 1983, and August 16, 1983, Respondent's facilities were inspected by Animal and Plant Health Inspection Service personnel, as a prerequisite for obtaining a license. The Complainant maintains and the evidence does show that the Respondent was advised during each of these inspections that deficiencies existed that precluded licensing.

6. The Complainant's evidence shows that during the period January 1980 through April 1983, without being licensed, the Respondent sold approximately 380 dogs, representing a gross remuneration of $17,882.40 from the sale of such dogs.

**3 7. However, this represents a gross amount and does not include the expenses which would have been incurred in association therewith. For instance, one of the witnesses testified that probably for the most part expenses would have consumed the greater part of the $17,000.00, as well as having consumed, by way of costs of doing business, the greater part of $4,000.00, representing gross income from Respondent's business year 1983-84.

8. [Omitted.]

9. After Respondent was advised that her first application was not received, again, with the help of Mr. Hughes, the Respondent submitted a second license application. Thereafter, a number of inspections occurred, referred to as prelicensing inspections, during which time the inspectors found alleged deficiencies in the Respondent's facility. The first inspection occurred on October 10, 1979, and was performed by Mr. Boyd. It was indicated thereon that: "Will re-inspect in 60 days." The next inspection occurred on May 23, 1980, at which time the inspection report referred to "license pending." This inspection was performed by Mr. Sparkman. The next inspection after that did not occur until April 23, 1981, and this was performed by Mr. Sparkman. Included in that inspection report (Complainant's Exhibit No. 16) is the statement: "Violation procedures recommended." Thereafter, the Respondent's facility *543 was inspected on June 3, 1983, by Mr. Greenwood. On that inspection report where it asks for the date of the last inspection the word "NONE" is written. A further inspection took place of August 16, 1983, by Mr. Sparkman, at which time Respondent's facility was recommended for license.

10. [Omitted.]

11. [Omitted.]

12. The evidence shows that at a time when she was unlicensed the Respondent did sell in commerce 383 dogs.

13. The evidence further shows that the Respondent made a good faith effort to obtain a license. The Respondent did not have the ability to understand what was required on the licensing form and sought out and obtained the advice of an experienced and professional puppy broker, Mr. Hughes. He assisted the Respondent. His testimony indicates that he was well acquainted with the Respondent; that he was aware of the difficulties which she was having with the alleged deficiencies; that he believed the dogs or puppies which he obtained from her facility were among the most healthy and well-kept puppies that he knew of; that the Respondent kept very good records; and that he believed that much of the difficulty in this case could have been precluded had different judgmental factors been obtained.

14. A most credible witness, and one who was called by the Complainant, was Mr. James C. Hughes, a wholesale Puppy Broker for approximately 30 years and who sold dogs as a wholesale broker throughout the United States, Canada and Puerto Rico. He had known the Respondent for approximately 15 years. Mr. Hughes was the current Vice President of the Mid-West Professional Pet Distributors Incorporated, headquartered in Kansas City. Said organization is a nation-wide organization of breeders and brokers across the nation. Mr. Hughes was on the Board of Directors and he was a past President. Mr. Hughes has been regarded by the Judge as a most credible witness and his testimony reflects experience and knowledge in the area of breeding and selling puppies. He testified with respect to the next to the last inspection, where the alleged deficiency related to the fact that one of the little puppies had chewed a corner of his holding box and that the corner did not have the proper paint or varnish on it. It was Mr. Hughes' opinion that this was a minuscule deficiency and was simply something that, if it had to be remedied, could easily have been corrected.

**4 15. [Omitted.]

16. The Government adduced three witnesses whose testimony related to the alleged lack of personnel and resources in order to carry out their functions and the alleged difficulty which the Department *544 was having with the State of Missouri, particularly the southeastern section with respect to unlicensed dealers.

17. [Omitted.]

18. [Omitted.]

19. The selling in commerce of the 380 puppies from January 1980 through April 1983 was a violation of the Act. . . .

20. [Omitted.]

ADDITIONAL FINDINGS OF FACT BY THE JUDICIAL OFFICER

 

21. On May 23, 1980, Mr. Sparkman, one of complainant's animal health technicians, found deficiencies in respondent's facilities which precluded licensing. He discussed the deficiencies with her and told her that she should not sell dogs wholesale until she was licensed. He told her to contact him for a reinspection when the deficiencies were corrected, but she failed to do so. (Tr. 83-85; CX 15)

22. On April 23, 1981, Mr. Sparkman returned to respondent's premises on his own initiative. Respondent advised him that deficiences still existed and would not permit him to make an inspection. Mr. Sparkman advised respondent that charges might be initiated against her for not permitting the inspection, and because she was selling animals without a license. He again advised her not to sell animals wholesale, and told her to contact him when the deficiencies were corrected. Respondent failed to contact Mr. Sparkman. (Tr. 85-87; CX 16).

23. On July 1, 1981, respondent was interviewed by Mr. McFather, one of complainant's compliance officers. He warned her not to make any further wholesale sales without a dealer's license. (Tr. 27-28, 64, 67, 77; CX 13B)

24. On June 3, 1983, Dr. Greenwood, Mr. Sparkman's supervisor, inspected respondent's facilities and found deficiencies that precluded licensing (Tr. 88-90; CX 17).

25. On August 16, 1983, Mr. Sparkman again inspected respondent's facilities and found a deficiency that precluded licensing. He again told her not to sell wholesale until she was licensed, and requested her to contact him when the deficiency was corrected. (Tr. 91-92; CX 18)

26. Shortly after the August 16, 1983, inspection, respondent contacted Mr. Sparkman to obtain a reinspection. He inspected the facility on September 27, 1983, and approved it for licensing. (Tr. 91-92; CX 19)

*545 CONCLUSIONS BY THE JUDICIAL OFFICER

 

The undisputed evidence shows that respondent acted as a dealer between January 1980 and April 1983, as charged in the complaint. The Act defines the term dealer as follows (7 U.S.C. § 2132(f)):

(f) The term "dealer" means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include-

**5 (i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or

(ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year.

It is unlawful to act as a dealer without a license from the Secretary. Specifically, the Act provides (7 U.S.C. § 2134):

§ 2134. Valid license for dealers and exhibitors required

No dealer or exhibitor shall sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked.

The Act authorizes the Secretary to assess a civil penalty of $1,000 for each violation. The Act provides (7 U.S.C. § 2149(b)):

(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

*546 Any dealer . . . 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 violation continues shall be a separate offense. . . . 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. Any such civil penalty may be compromised by the Secretary.

With respect to the first criterion specified by the Act, viz., "the size of the business of the person involved," respondent keeps about 30 to 35 dogs in her kennel, which is a "moderate-sized facility" (Tr. 95). Accordingly, a more modest civil penalty is appropriate than would be assessed against a large-sized facility.

With respect to the second criterion, "the gravity of the violation," the record here shows that respondent made hundreds of sales without a license over a 40-month period, in violation of the Act. The violations proved in this case, operating as a dealer without a license, strike at the very heart of the regulatory program mandated by Congress in the Animal Welfare Act. See H.R. Conf. Rep. No. 1848, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. Ad. News 2635, 2649. If unlicensed dealers were allowed to operate without fear of serious consequences, the regulatory program could not long survive. The number of sales and extended period of the violations are further aggravating factors. Respondent was licensed as soon as she demonstrated compliance; her unlicensed sales prior to that time constitute grave violations of the Animal Welfare Act that warrant a more severe sanction than that requested by complainant.

**6 The third factor to be considered is respondent's "good faith." Although respondent presented her efforts to obtain a license as a mitigating factor, her efforts in fact demonstrate her knowledge of the requirements of the Act.

The ALJ found that respondent did not know that she could not sell her dogs during the period her license application was pending. Specifically, the ALJ found (Initial Decision at 4, 8, 9):

8. Although the Complainant maintains that the Respondent was warned in April of 1980 and July of 1981, the Respondent denies this and was under the belief that *547 she could continue operating while her application for license was pending. The Respondent indicated that the first notice which she received and which she understood was in 1983 and that thereafter from May 1983 she did not sell any puppies until the time she became licensed.

15. Respondent denies she was given "warnings"-her belief was that each time an inspector came, she would have additional things to correct. And, in her Brief she contests the fact that Inspector McFather ever talked to her on the occasion to which he testified. He may have talked to her daughter.

Based upon an evaluation of the entire record herein, the most persuasive evidence is to the effect that Mr. Danny McFather, Compliance Officer, who allegedly made an inspection of her facility on July 1, 1981, did not give her the warnings, or explanations, as contended by the Complainant. The Respondent refutes on Brief and at the hearing (Tr. 54, 74) that she ever saw this inspector on July 1, 1981. Also, the witness's (Mr. McFather) recollection concerning this alleged inspection was premised solely upon his interview log which he had reviewed the morning of the hearing. He possessed no independent recollection of the inspection nor any of the details relating to same. Although the witness was given to testifying as to what "standard procedure" was involved, nevertheless, his uncertainty relative to this inspection gives credence to the contention of the Respondent that she did not see nor talk to Mr. McFather on July 1, 1981.

17. Although there is conflicting testimony as to what the various inspectors told Mrs. Ennes, the more persuasive evidence and based upon her credibility I am finding that she either was not told or she did not understand that while her license was pending she could not sell dogs. Mrs. Ennes testified, and I believe her, that she was under the impression that inasmuch as she had a license pending she could sell the dogs as long as she was making an effort to bring her facility up to the standards required by the inspectors.

*548 18. Furthermore, Mr. Hughes corroborated her understanding of the situation.

It is the consistent practice of the Judicial Officer to give great weight to the findings by Administrative Law Judges since they have the opportunity to see and hear the witnesses testify. [FN2] However, findings of fact, even when based on the ALJ's determination as to the credibility of witnesses, may be set aside if they are "hopelessly incredible." Fairbank v. Hardin, 429 F.2d 264, 268 (9th Cir.). cert. denied, 400 U.S. 943 (1970). In the present case, I find the ALJ's findings that respondent did not know that she was violating the law by selling dogs wholesale while her license application was pending "hopelessly incredible."

**7 Mr. Sparkman, one of complainant's animal health technicians who inspected respondent's facilities, testified that he told respondent on three occasions that she could not sell animals wholesale until she received her license. Mr. Sparkman testified with respect to his May 23, 1980, inspection (Tr. 84-85):

Q. Did you have occasion on that visit to discuss licensing requirements with Mrs. Ennes?

A. Yes, I did. I indicated to her the need for her to correct these deficiencies and that in order to be licensed she would need to correct those, and I mentioned to her that she should not sell wholesale until she was licensed.

Mr. Sparkman further testified with respect to his attempt to inspect respondent's facilities on April 23, 1981 (Tr. 86-88):

The WITNESS: . . . And [I] also mentioned to her that possibly violation charges might be initiated because she wouldn't allow me to make the inspection and because she was selling animals.

Q. Now, Mr. Sparkman, when you left after your visit of April 23, 1981, again sir, what was your understanding with Mrs. Ennes about when you would be back?

*549 A. I told her again that she should not sell wholesale and if she got it, even at that point, if she got it in compliance that she could contact me, she should contact me.

Mr. Sparkman testified with respect to his inspection of respondent's facilities on August 16, 1983 (Tr. 92):

A. She had another deficiency, as indicated on the report. I indicated that when she corrected this and if there wasn't no other deficiencies on a return trip, that we could license her and that she still should not sell wholesale until she was licensed. And to my knowledge, she understood that.

In addition, Mr. McFather, a Compliance Officer for complainant, testified that he interviewed respondent on July 1, 1981, and warned her not to make any further wholesale sales without a dealer's license. He testified (Tr. 27-28, 64, 67, 77):

Q. And what did you do when you visited Mrs. Ennes in 1981?

A. Well, when I first arrived, I introduced myself, I informed Mrs. Ennes as to the nature of my visit and I explained to her her rights under the Miranda Rule.

Q. Was it customary to give Miranda Warnings at that time?

A. Yes, it was.

Q. And, then, what did you discuss with Mrs. Ennes?

A. Her sales of dogs.

Q. Did you discuss with her the requirements of the Animal Welfare Act in any way?

A. Yes, sir, I did.

Q. Did you discuss the licensing requirements with her?

A. I did.

Q. Was Mrs. Ennes aware of these requirements, or was this the first time she'd heard of it?

A. She told me that she was aware that she was required to have a license, a dealer's license, to sell dogs wholesale.

*550 The WITNESS: Again, I have to go by what would be standard procedure and what I have written on my interview log.

Judge BAKER: Do you have any independent recollection of what occurred?

**8 The WITNESS: I do remember going there and discussing with Miss Ennes her sales, warning her against not making any further sales.

The WITNESS: As I left Mrs. Ennes' residence, I drove down the road just a short distance and I stopped and recorded the information which was later typed on an interview log, which I signed.

Judge BAKER: Do you have any other questions, Mrs. Ennes?

Mrs. ENNES: I don't guess. I just never talked to him.

The WITNESS: Your Honor?

Judge BAKER: Mr. McFather?

The WITNESS: I'd like to make a comment that more than likely at the time I was there, I was wearing a cap and also I may not have had a mustache at that time.

Judge BAKER: Could you borrow somebody's cap? Did you recognize Mrs. Ennes, Mr. McFather?

The WITNESS: Yes, I did.

Mr. McFather's interview log, which was referred to in his testimony, states (CX 13B):

After identifying myself and stating the nature of my visit, I explained to Mrs. Ennes her rights under the Miranda Rule. Mrs. Ennes stated she sold puppies to individuals and did not know what they did with them nor was it her concern. She did know that selling dogs wholesale without a dealer's license was a violation of the Animal Welfare Act and regulations. Her breeding stock consisted of approximately 30 bitches and several males. She would *551 like to have her kennel licensed but could not afford to fix it up to meet the requirements.

The ALJ's view as to respondent's lack of knowledge would be destroyed if she received and understood any one of the four warnings referred to by Mr. Sparkman and Mr. McFather. The evidence set forth above comes from two disinterested government employees who would have no apparent motive for giving false testimony. Respondent, on the other hand, had a clear motive for being less than candid. Moreover, her testimony as to her lack of knowledge, when carefully analyzed, is quite weak. It strongly suggests that she knew that it was unlawful to sell dogs without a license to a wholesale broker, but she did not believe that complainant would bother to prosecute her for violations while her license application was pending. Specifically, she testified (Tr. 155-61, 170; emphasis added):

Q. Did you make any calls to inquire about the status of your license?

A. No, I sure didn't. As far as me making no calls, no, I didn't. I took it as, when I filled it out, they would come back and inspect me. Maybe I didn't understand. Just like Sparkman, I thought as long as I was trying to do these things that they told me to do, I didn't know that I would be prosecuted if I would go ahead and sell my dogs.

Because I told him, and he will verify it, that I told him that was the only way I had of doing this work on this. I'd sell some puppies. Then I would proceed to go on with-my money went right back into them.

. . . But then, like I said, in May of '83, May the 3rd of 1983. I have the letter. And here is the letter. They notified me-you can read the letter-that I had been selling without a license, and if I continued to sell the dogs without the license, I would be prosecuted. That was the first that I knew that I would be prosecuted, was May the 5th of 19 and 83.

**9 The WITNESS: . . . They sent me some literature [in May 1983]. Well, it was a book, a couple of books came with this altogether. And it was certified. I signed for it. It *552 was a certified letter. And that is the first I knew that I would be prosecuted and then I didn't sell no more. . . .

But I still didn't get this until '83. And that's the first time I knew-I thought as long as I was working on my kennel-that was what I was led to believe. As long as I was doing and trying to do, that I could go ahead and sell. And I had to do the kennel as my money permitted. I mean, I had no other choice or else-and there was no way I could feed the dogs.

Q. (By Judge Baker) Did Mr. Boyd know that you were selling dogs?

A. Yes. I told him I was.

Q. Did Mr. Sparkman know you were selling dogs?

A. Yes. Yes.

Q. Did Mr. Greenwood know you were selling dogs?

A. Yes, I told them. They asked me who I was selling to and I told them. I told them I was selling to Jim Hughes, except a few that I have-I still sell a few out the door, if somebody calls me. I don't advertise for them but if they do, if I don't have the puppy booked, I will sell it out the door. In fact, I probably could sell more of them out the door if I had advertised them but I didn't. I didn't feel like anything I was doing was wrong.

Q. Do you want to continue?

A. Well, other than that, that is all I know. And after I got this letter, then I didn't sell no more puppies. I just quit breeding them until I could go ahead and get my license. . . .

And then in September is when I got this deal here that I was being prosecuted. After, in May. And here it is.

Q. And you are referring to the Complaint?

A. Yes, that is the first letter I got. And that is the first thing. This letter here is the first thing I got that I would be prosecuted. The first citation or anything that anybody told me. I thought as long as I was fixing my kennel, that *553 it was O.K. They didn't tell me that I would be prosecuted if I would had sold those puppies.

If I wasn't fixing my kennel, you know. But I thought as long as I was doing like they told me to do-

Judge BAKER: Is there anything else you would like to present in this case in this matter?

MS. ENNES: No. I do know I asked Mr. Sparkman about selling puppies out the door if I didn't have a license, at the time I got this letter [in May 1983]. And, you know, if I could sell them out the door. And he said I could. From my house, you know. And that is the only way I had to sell them. And he told me that it was O.K to do that. But I just couldn't sell them to a broker until I got my license. That was after I got this letter.

Although respondent did, at times, state that she thought that it was alright to sell dogs without a license, she stated more frequently that she thought she would not be prosecuted for selling dogs without a license. The ALJ found that respondent's testimony was corroborated by Mr. Hughes. But it is only this latter aspect of her testimony, in this respect, that was corroborated by Mr. Hughes- viz., that she thought she would not be prosecuted for selling dogs without a license while her license application was pending. Specifically, Mr. Hughes testified (Tr. 21-23, 128, 136; emphasis added):

**10 The WITNESS: . . . I think she's an honest and forthright woman that wouldn't purposely violate the law. I think that she has been somewhat misled to the fact that people all around her are doing the same thing she has done and there's a laxity in Animal Welfare for licensing people, so it led her into a false sense of security, you might say, that nothing was going to happen about this.

At the time she realized the seriousness of it, she started trying to get a license [in 1979]. At the time she applied for a license, when they come out and inspected her, she tried to clean up her kennel as well as possible. The Department didn't come back to re-examine her at the time they were supposed to and the things that she had done had deteriorated over a nine or ten-month period until she had to do it over again. It just was a comedy of errors, you might say, in this thing, that had the Department re-inspected *554 her the way they have other people, she would have got the license many years ago.

Judge BAKER: Very well. Mr. Hughes, you have an opinion as to the desire or the manifestation of the Respondent, Mrs. Ennes' desire to comply with the law? Do you believe that she wishes to comply with the law, if she knows what it is?

The WITNESS: Yes, I really do. In fact, she has complied with the law now in the past year. And in defense of Mrs. Ennes, in all the time she was not licensed, her facility was usually equal to that of other ones that I visited that were licensed. She would have minor discrepancies in different places. But she's an honest woman, I believe.

It is kind of customary with most breeders when they apply for this license, that as long as they are working on it, these sort of actions are not instigated. And I probably was somewhat at fault in giving her false advice because I told her as long as she continued to try to cooperate that this action would not be initiated against her.

There were several other people that this same action was initiated again, one being June Parks, which you had a check mixed in with her stuff today. But several of these people that action could have been initiated against, were not once they applied for a license past, and received their license.

. . . This lady has not tried to avoid the Laws. She has been there since 1979, trying to get a license.

Our contention is that had the inspections been done at the time that they should have been done, she would have been in compliance. And they weren't done until 7-8-9-10 months later. At which time, the paints and the cleanup, and the cutting the weeds and fixing the wire, had deteriorated again.

Considering all of the evidence in this case, I find the ALJ's findings that respondent did not know that it was unlawful to sell dogs *555 without a license while her license application was pending "hopelessly incredible." I infer that she was fully aware of the requirements of the Act, and that she knowingly and intentionally continued to violate the Act by selling dogs wholesale without a license on the mistaken belief that the Department would not "prosecute" her for such violations. Accordingly, her violations were not committed in good faith but, rather, were knowingly and intentionally committed in violation of the Animal Welfare Act.

**11 Mr. Hughes' view that respondent's facilities would have been approved much earlier if the inspections had occurred before conditions "deteriorated again" (Tr. 136) is not a mitigating circumstance. The delay in the inspections was caused by respondent's failure to contact Mr. Sparkman, as he repeatedly told her to do (Findings 21-26). Furthermore, the purpose of a pre-license inspection is to determine if an applicant can maintain minimal standards of cleanliness at all times; not whether on one day the place can be clean. Respondent's argument that "the paints and the cleanup, and the cutting the weeds and fixing the wire, had deteriorated again" (ALJ's Decision at 5) is an admission that she was properly not licensed, not a mitigating factor. (The situation may have been different if respondent ceased operations because she could not get a license and therefore her facility deteriorated; but, on the contrary, respondent continued to operate and sell dogs without a license in violation of the Act.)

The last of the criteria to be considered is the "history of previous violations." Although there were no previous violations, the hundreds of violations proven here are enough in themselves to warrant a severe sanction.

Considering the statutory criteria for determining sanctions under the Animal Welfare Act, a civil penalty of $2,500, as originally requested in the complaint, would have been very modest for the hundreds of deliberate and serious violations involved here. Complainant's recommendation after the hearing for a civil penalty of only $1,000 is too modest, and complainant's latest recommendation on appeal (interposing no objection to suspension of half of a $1,000 civil penalty based on respondent's ability to pay) is far too modest to be acceptable. [FN3] However, in deference to the administrative recommendation, I will assess a civil penalty of only $1,000 in *556 this case, although a greater civil penalty would have been assessed if complainant had so requested. [FN4]

For the foregoing reasons, the following order should be issued.

ORDER

Respondent is assessed a civil penalty of $1,000, which shall be paid not later than the 90th day after service of this order by certified check or money order, made payable to the United States Treasury and sent to Donald A. Tracy, United States Department of Agriculture, Office of the General Counsel, Room 2014-South Building, Washington, D.C. 20250.

Respondent, her agents, employees, successors and assigns, acting directly or indirectly, or through any corporation, partnership, trust or other device whatsoever, shall cease and desist from selling dogs in commerce in violation of 7 U.S.C. § 2134.

The cease and desist provisions of this order shall become effective on the day after service of this order on respondent.

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 E.g., In re King Meat Packing Co., 40 Agric. Dec. 552, 553 (1981); In re Thornton, 38 Agric. Dec. 1425, 1426-28 (remand order), final decision, 38 Agric. Dec. 1539 (1979) (affirming Judge Baker's dismissal of complaint where she accepted the testimony of respondent's wife, respondent's employee, and respondent's "real good friend" over that of three disinterested USDA veterinarians); In re Unionville Sales Co., 38 Agric. Dec. 1207, 1208-09 (1979) (remand order); In re National Beef Packing Co., 36 Agric. Dec. 1722, 1736 (1977), aff'd, 605 F.2d (10th Cir. 1979).

FN3 The statute permits the Secretary to compromise the civil penalty if respondent cannot afford to pay it (7 U.S.C. § 2149(b)). Accordingly, there is no need to take ability to pay into consideration when assessing the civil penalty.

FN4 Where the administrative recommendation for a sanction is so lenient that it would not effectuate the purposes of the Act, the Judicial Officer will sua sponte increase the sanction. See In re Esposito, 38 Agric. Dec. 613, 623 n.7 (1979). But that is not the case here.

 

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