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

IN RE: ERVIN STEBANE
United States
47 Agric. Dec. 1264 (1988)


Case Details
Printable Version
Summary:  

Licensed dealer who engaged in recurring pattern of trivial noncompliance with housekeeping requirements, failed to provide records on two occasions and failed to permit inspection on one occasion, is properly sanctioned with 20-day license suspension, $1500 civil penalty, and cease and desist order.



Judge Initial decision issued by John A. Campbell, Administrative Law Judge. Decision and order issued by Donald A. Campbell, Judicial Officer. 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. s 2131 et seq.), and the regulations and standards issued thereunder (9 C.F.R. s 1.1 et seq.). On March 2, 1987, (then Chief) Administrative Law Judge John A. Campbell (ALJ) issued an initial Decision and Order suspending respondent's license for 20 days, assessing a civil penalty of $1,500, and directing respondent to cease and desist from numerous practices involving the care and housing of dogs and cats, from failing to allow inspection of respondent's records, and from failing to allow inspection of respondent's facilities.

On April 6, 1987, complainant 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. ss 556 and 557 (7 C.F.R. s 2.35). [FNa] The case was referred to the Judicial Officer for decision on April 24, 1987.

*1265 Based upon a careful consideration of the record, the initial Decision and Order is adopted as the final Decision and Order in this case, with several changes too trivial to itemize. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION

Preliminary Statement

This is a disciplinary proceeding under the Animal Welfare Act (7 U.S.C. ss 2131 et seq., hereafter called the "Act"), instituted by a complaint filed on July 11, l986, by the Administrator of the Animal and Plant Health Inspection Service (hereafter "APHIS"), United States Department of Agriculture. The complaint alleges that the respondent willfully violated the Act, and the regulations and standards issued pursuant to the Act, 9 C.F.R. s 1.1 et seq., regarding cleaning, sanitation, and housekeeping functions at respondent's facilities.

**2 An answer was filed on August 8, 1986, which admitted the jurisdictional allegations of the complaint. With respect to the remaining allegations, respondent denied violating the Act and/or alleged that the deficiencies were corrected.

A hearing was held in this proceeding on November 13 and 14, 1986, in Oshkosh, Wisconsin. John D. Griffith and Mary K. Hobbie of the Office of the General Counsel, United States Department of Agriculture, appeared on behalf of the complainant. Eugene A. Bartman of the Curtis-Wilde Law Office, appeared on behalf of respondent. At the close of the hearing, the time was set for the filing of briefs.

Hereafter transcript references will be as follows: Tr. I, (p. # ) for the hearing transcript of November 13, 1986; Tr. II, (p. # ) for the hearing transcript of November 14, 1986. Where applicable complainant's exhibits will be cited Cx ____, and respondent's exhibit as Rx ____.

Findings of Fact

 

1. Ervin Stebane (hereafter the "respondent") is an individual doing business at Rural Route #4, Kaukauna, Wisconsin 54130.

2. The respondent, at all times material herein, operated as a dealer as defined in the Act and held a Class B license (No. 36-B-9) issued under the Act. Respondent was first licensed in 1967, and is the largest Class B dealer in Wisconsin.

3. At the time of respondent's application for a license, he received a copy of the regulations and standards promulgated under the Act and agreed in writing to comply with them.

4. APHIS inspected respondent's facilities on February 15, February 22, and March 6, 1985 (Cx 5, 6, 7), and discovered numerous conditions which constitute violations of the regulations and standards issued under the Act.

*1266 5. In a certified letter dated April 18, 1985 (Cx 8), APHIS informed the respondent that the above-mentioned inspections had disclosed conditions constituting violations of the regulations and standards, advised him of his obligations under the Act, regulations, and standards, and afforded him an opportunity to achieve compliance. The letter reads in part as follows:

The U. S. Department of Agriculture has information which indicates that you have not maintained your animal facilities (dogs, cats, opossums) in compliance with various husbandry standards of the Animal Welfare Act (AWA) (Public Law 94-279). Such information is based on inspections of your facilities on February 15, 1985; February 22, 1985; and March 6, 1985.

The specific alleged violations are as follows:

Section 3.1(c) - Storage of Food

Supplies of animal food, such as ground meat and cheese, have been stored outdoors in uncovered containers, thereby exposing the food to contamination or infestation by vermin.

Section 3.2(b) - Interior Surfaces

The interior building surfaces of each of your three animal buildings were not substantially impervious to moisture, as required. As instructed earlier on your inspection reports, you shall have until June 1, l985, to correct this deficiency.

**3 Section 3.4(a) - General Requirements

The wire fencing between the outdoor runs in building 1 is not in good repair to protect the dogs and cats from injury, to contain them, and to keep predators out, as required.

This is to advise you that the Department does not intend to seek prosecution in this matter, but continued failure to abide by the Act, regulations, and standards may be deemed willful by the Department and legal proceedings may be initiated.

6. The three violations listed in the warning letter of April 18, 1985, were corrected. (Tr. II 36; Cx 1, 2)

7. APHIS reinspected the respondent's facilities on May 2, 1985 (Cx 1), and found the following violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act:

a. Respondent failed to provide adequate lighting in an indoor housing facility;

b. Respondent failed to maintain interior building surfaces substantially impervious to moisture; and

c. Respondent failed to provide litter boxes in primary enclosures for cats.

*1267 8. APHIS reinspected the respondent's facilities on August 2, 1985 (Cx 2), and found the deficiencies from the previous inspection (Finding 7 above) were corrected (Tr. I 34), but found the following new violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act:

a. Respondent failed to provide a suitable method to rapidly eliminate excess water;

b. Respondent failed to provide clean watering receptacles; and

c. Respondent failed to remove an accumulation of excreta from primary enclosures.

9. APHIS reinspected the respondent's facilities on October 7, 1985 (Cx 3), and found the following violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act: [FN1]

a. Respondent failed to make adequate provisions for the removal of animal waste and bedding along the sides of the facility near the pens;

b. Respondent failed to provide adequate storage for food (food freezer was not clean at the time of inspection);

c. Respondent failed to provide a litter box in a primary enclosure for cats;

d. Respondent failed to provide adequate space for cats (standards required 2- l/2 sq. ft. per cat; 12 cats were housed in a 5x5 ft. enclosure);

e. Respondent failed to provide clean food receptacles;

f. Respondent failed to provide clean watering receptacles;

g. Respondent failed to remove an accumulation of excreta and other debris from wire flooring of a primary cat enclosure; and

h. Respondent failed to keep the premises clean and free from trash.

10. While subsequent inspections (Cx 9, 10, 11, 12 and 13) disclose the eventual correction of the deficiencies in Findings 8 and 9, additional deficiencies were found by APHIS which also were eventually corrected. During all inspections, beginning in February 1985, respondent was cited for one or more deficiencies (Tr. I 230-231, II 9, 125, 147).

**4 11. During the October 7, l985, inspection, respondent did not furnish records to the APHIS inspector. The APHIS inspector testified that respondent said he was too busy. Respondent on the other hand testified that his wife, who maintained the records, was in the hospital. Whatever the reason, there was a failure to furnish the records at a reasonable time during ordinary business hours.

*1268 Said records were to be furnished by October 9, but reinspection was not attempted until November 7, l985. (Cx 3; Tr. I 41, 123-124, 158, II 120- 121).

Respondent's records were made available on the next inspection of April 7, 1986 (Cx 9).

12. An APHIS inspector attempted to reinspect the respondent's facilities on November 7, 1985, but declined to do so because of respondent's conduct. Respondent invited the inspector to inspect, but told the inspector to stop harassing him. Respondent made disparaging remarks about the inspector's personal conduct and questioned her use of common sense in the conduct of prior inspections, while holding a hammer in his hand which he had been using to repair a fence. (Cx 4; Tr. I 45, 128- 130, II 65-69, 235-236).

Respondent's conduct impeded the reinspection and constituted a refusal to permit the inspection.

Conclusions

All contentions of the parties raised in this proceeding, whether or not specifically noted herein, have been considered in the light of the record evidence in arriving at the conclusions which follow:

1. By reason of Findings of Fact l-l0, respondent has failed to maintain his facility in compliance with the regulations and standards and has willfully violated section 9 CFR 2.l00 of the regulations and sections 9 CFR 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7 of the standards.

2. By reason of respondent's refusal to allow the inspection of records on October 7, l985 (Finding of Fact 11) respondent has willfully violated the Act, 7 U.S.C. 2140, 2146 and sections 9 CFR 2.126, 2.75 of the regulations.

3. By reason of respondent's refusal to allow inspection of his facility on November 7, 1985, respondent has willfully violated the Act, 7 U.S.C. 2146.

These violations warrant the imposition of a severe sanction, i.e., $l,500 civil penalty, a 20-day suspension continuing until full compliance is achieved, and the cease and desist provisions requested by complainant.

Discussion

I

Review of the record as a whole indicates that the principal problem concerns respondent's failure to fully bring his facilities into compliance with the regulations and standards issued in accordance with the Act. This problem is best illustrated by the following excerpt from the hearing transcript, the redirect examination of Dr. Richard W. Bertz (Tr. I 230-232):

*1269 Q

During the entire course of your inspections of Mr. Stebane's facility, did you ever have an inspection where you cited no alleged violations to the Act or regulations or standards under the Act?

A

No, I did not.

**5 Q

Is it fair to say in all cases you found a deficiency or deficiencies?

A

That's correct.

Q

What pattern of compliance or noncompliance with the Act did you notice during your inspections of his facility?

A

I saw from the time I rode with Katie to when the facility was my primary responsibility for doing the inspections a pattern of varying compliance with the minimum standards of the Animal Welfare Act, never being in full compliance with those minimum standards.

Q

During the course of your inspections, did the Respondent attempt to correct certain deficiencies at times?

A

Yes.

Q

Was he successful in his corrections?

A

On some of the deficiencies, yes.

Q

At the same time that he was correcting certain deficiencies, did other items at his facility become deficient?

A

In the interim between inspections, correct.

Q

So that on each of your inspections, did you ever come across a time in which all conditions were in compliance with the Act and regulations and standards?

A

No, I did not.

Q

Does Mr. Stebane have a responsibility to comply with the Animal Welfare Act at all times?

A

Yes, he does.

Q

How does the number of animals he keeps at the facility affect or alter his responsibility to comply with the Animal Welfare Act at all times?

*1270 A

It has no bearing on his responsibility to meet the minimum standards.

The testimony of Dr. Gifford S. Jacobsen, also demonstrates the problem of respondent's recurring noncompliance, even while correcting prior deficiencies (Tr. I 13):

Well, I think it shows good faith to a point, but again I think my main concern or my main point is that it seems that quite often it's a situation where he feels that he doesn't have to correct the deficiencies until our people come around and point these out and then oftentimes he will correct them sometimes on the spot. That's fine, but we're shooting for total compliance and we feel that it's the responsibility of the licensee to maintain the standards. It isn't the purpose of our inspectors to go around and point out these things they need to do. Certainly we do that, but our main function is to monitor these facilities, see if they are in compliance and the main function is not to tell them of things that need to be corrected and see that they do it.

Basically it is the pattern of respondent's recurring noncompliance which is the heart of the problem here. Taken individually (Findings 5-9), a number of violations are minor deficiencies and appear to fall within the Judicial Officer's concept of trivial violations. In re Marlin U. Zartman, 44 [Agric. Dec. 174 (1985)]. Other violations because of weather conditions or time needed to make the corrections, delayed the improvements required to effect compliance. There was never an adamant refusal by respondent to comply. Corrections were always made eventually, but new deficiencies developed. The sanctions imposed should deter this pattern of recurring noncompliance.

**6 Respondent's brief considers each separate violation and urges with respect to each violation that the particular violation was not willful nor chronic. However, it is the totality of the violations which leads to the conclusion that the violations were repeated and willful. The violations were clearly willful, as that term is used in the Administrative Procedure Act (5 U.S.C. s 558(c)). In re Shatkin, 34 A.D. 296, 297-314 (l975). An "action is willful if a prohibited act is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements." American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (CA 5, l980) (per curiam), cert. denied, 450 U.S. 997 (1981). Further respondent was notified that continued noncompliance "may be deemed willful" (Finding 5).

Respondent further argues in his brief about the subjective interpretation of the regulations by the inspector involved in citing the violations. However the record indicates that the inspector's findings of deficiencies were corroborated by other APHIS personnel who accompanied the inspector on some of the inspections.

*1271 II

The matter of the failure to provide records (Finding of Fact 11) also seems to fall within the pattern of recurring noncompliance, but requires further discussion.

We are not concerned with the respondent's maintenance of records. He kept records and apparently the type of records maintained by respondent generally complied with 9 CFR 2.75. (Rx 1, Cx 1, 5, 7, 10, 11, 12).

Even some of the witness who testified on behalf of respondent (although not familiar with the Act) testified concerning respondent's concern for good records (Tr. II 211-212, 232).

The problem here is that the records were not made available at the time requested by the APHIS inspector. The hearing record indicates that APHIS previously sought respondent's records during an inspection on August 2, l985. They were unavailable because Mrs. Stebane, who maintained the records, was ill. The inspector returned on August 5, and was shown the records (Cx 2, Rx 1; Tr. I 62-63, l00, II 105-106).

Again on October 7, l985, APHIS sought respondent's records but they were not furnished (Finding of Fact 11). There seems to be a conflict in testimony regarding the reason for withholding the records. However, regardless of the reason the records were not furnished. Respondent had an obligation (particularly after receipt of the warning letter of April 18, 1985 - Finding 5) to take action between August 5 and October 7, to insure that the records were available during his business hours when inspections are held.

III

The refusal to permit an inspection on November 7, 1985 (Finding of Fact 12), is the only instance in the record where respondent interfered with an inspection of his facilities. Apparently annoyed by deficiencies noted by the inspector on a prior visit, respondent cautioned her not to harass him. This could only suggest to the inspector that respondent wanted no further deficiencies uncovered. Coupled with this admonition was the fact that respondent happened to hold a hammer in his hand. We must conclude that the purpose of such conduct by respondent was to intimidate the inspector and obstruct the performance of her duties in an unbiased manner. Cf. In re Salsburg Meats, 36 A.D. 1929, 1933 (1977). Such conduct was tantamount to a refusal to permit the inspection.

Sanction

**7 Giving due consideration to all of the four factors contained in the Act, 7 U.S.C. 2149, i.e., size of the respondent's business, gravity of the violations, good faith, and history of previous violations, the sanctions imposed *1272 are appropriate, reasonable, and necessary to achieve the remedial purpose of the Act, and to deter respondent and others from similar violations. Further in view of the nature of the violations considered here, the order issued herewith is consistent with the Department's severe sanction policy. See: Rudolph Vrana, 43 [Agric. Dec. 1758, 1766 (1984)].

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Complainant appeals (Appeal of Complainant, April 6, 1987) only the sanction herein, and requests that the penalty provisions of the ALJ's order be increased to the level of complainant's originally requested sanction, viz., a $5,000 civil penalty and a 90-day suspension, rather than the $1,500 civil penalty and the 20-day suspension imposed by the ALJ. Respondent argues in reply (Respondent's Response to Appeal of Complainant, April 20, 1987) that the ALJ's decision and order should not be disturbed.

After close scrutiny of the entire record herein, including the pleadings, the lengthy transcript, the exhibits, and the arguments on appeal, I affirm the ALJ's sanction, and the rest of the initial decision in all respects.

Complainant is, of course, correct that the Department's severe sanction policy anticipates that the Judicial Officer will place great weight upon the sanction recommended by agency officials (In re Esposito, 38 Agric. Dec. 613 (1979)). On the other hand, the Judicial Officer also places great weight upon the findings of fact, conclusions and order of the ALJ, whose job it is to examine the evidence of record and the credibility of the witnesses (In re Spencer Livestock Commission Co., 46 Agric. Dec. ____, slip op. at 174 (Mar. 19, 1987), aff'd, 841 F.2d 1451 (9th Cir. 1988)). Thus, in reviewing the sanction imposed in the initial decision, the Judicial Officer looks to ensure that the congressional objectives are met, and that the remedial purposes of that Act are achieved, such that respondent, and others will be deterred from future noncompliance with the Act, and its standards and regulations.

Since respondent on appeal no longer contests the violations, the only real issue left is the correct sanction to be imposed. In a recent case, the three objectives of the Act were set forth from its legislative history (In re Hickey, 47 Agric. Dec. ____, slip op. at 13 (May 27, 1988), appeal docketed, No. 88-7281 (9th Cir. July 22, 1988)), as follows:

The Animal Welfare Act was enacted in 1966 to achieve three objectives:

"The purposes of this bill, as amended, are (1) to protect the owners of dogs and cats from theft of such pets, (2) to prevent the use or sale of stolen dogs or cats for purposes of research or experimentation and (3) to establish humane standards for the treatment of dogs, cats and certain other animals . . . by animal dealers and medical research facilities." *1273 (Senate Report No. 1281, June 15, 1966; 2 U.S. Cong. & Admin. News 66, at 2635.)

**8 In 1976 the Act was amended (Pub L. 94-279) to restate and explain those objectives, which are at the heart of this proceeding.

To better prevent the sale of stolen pets, the Act requires animal dealers to make and keep such records of "the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe". (7 U.S.C. s 2140.) Moreover, dogs and cats must be marked and identified by dealers as specified by the Secretary (7 U.S.C. s 2141).

Congress also directed the Secretary to establish standards for humane care and treatment which dog and cat dealers must observe as the minimum requirements for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, and adequate veterinary care (7 U.S.C. s 2143).

This record reveals no involvement by respondent in stolen animals, leaving only the third objective for scrutiny. Respondent committed numerous housekeeping violations. I agree with the ALJ (Initial Decision at 10-11) that the violations were for the most part trivial within the concept established in In re Zartman, 45 Agric. Dec. 174 (1985), and that the seriousness results from the continuous nature of the violations. I believe respondent made good faith efforts to achieve compliance, and the sanction herein should be sufficient to chasten respondent to do a better job in the future.

I also agree with the ALJ that respondent's actions on two occasions (August 2, 1985, and October 7, 1985), regardless of his reasons, served unlawfully to withhold business records from APHIS (Initial Decision at 12-13). Moreover, respondent acted in such a manner as to refuse inspection of his facilities on November 7, 1985, and, apparently, threatened and obstructed the inspector on that date.

In summary, respondent has had continuous housekeeping problems, has twice not produced business records on proper demand, and, has once prevented a duly-appointed APHIS inspector from inspecting the premises. Respondent raised plausible (but nonetheless unacceptable) excuses, reasons and defenses to each of these points.

The Act (7 U.S.C. s 2149) requires that sanctions be imposed only after due consideration of four factors: business size, gravity of violations, good faith, and history of previous violations. Although respondent's business is large relative to other Wisconsin operations, respondent's business in real terms is not that large. The violations, while serious, did not directly endanger the lives of any animals. There were no resultant hurt, *1274 abused, or sick animals disclosed in the record. In fact, not only did respondent not exhibit any cruel or inhumane treatment of animals in his care, there was a tremendous outpouring of testimony from neighbors, friends, etc., in the local community, that just the opposite was true of this respondent. As already stated, I believe that respondent did act in good faith to comply, albeit ineffectively. Respondent had been in business about 20 years, and had had no regulatory problems until this complaint.

**9 The ALJ properly applied the above criteria to the facts herein, and imposed the proper sanction which "is consistent with civil penalties assessed in other comparable cases" (In re Robinson, 42 Agric. Dec. 7 (1983)). The $1,500 civil penalty assessed against respondent, together with the 20-day suspension, are adequate to serve as an effective deterrent to future violations by respondent and others.

In affirming the ALJ's sanction, which is substantially less severe (or, less than one-third as severe) than that recommended by APHIS, I caution that no one should misconstrue that respondent's violations are not serious. The violations are serious. However, cease and desist provisions herein will operate with the 20-day suspension properly to achieve full compliance. This sanction allows APHIS to prevent the lifting of the suspension until respondent achieves full compliance, which was the very reason that these trivial housekeeping violations became serious.

The civil penalty of $1,500 is appropriate because of respondent's good faith attempts to comply, and because of the somewhat extenuating circumstances of respondent's refusals to permit inspections of records (on two occasions) and facilities (on one occasion). Had there been evidence of an adamant refusal in either the records or the facilities inspections, then the $5,000 civil penalty would have been imposed.

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

Order

Respondent Ervin Stebane shall comply with each and every provision of the Animal Welfare Act, 7 U.S.C. ss 2131-2156, and the regulations and standards issued thereunder, 9 C.F.R. ss 1.1- 3.142, and shall cease and desist from any violation thereof. In particular, respondent, his agents and employees, directly or through any corporate or other device, shall cease and desist from failing to:

1. Make adequate provisions for the removal of food wastes and bedding as required by 9 C.F.R. s 3.1;

2. Provide adequate storage for food as required by 9 C.F.R. s 3.1;

3. Provide litter boxes in primary enclosures for cats as required by 9 C.F.R. s 3.4;

4. Provide adequate space for cats as required by 9 C.F.R. s 3.4;

5. Provide clean food receptacles as required by 9 C.F.R. s 3.5;

6. Provide clean watering receptacles as required by 9 C.F.R. s 3.6;

*1275 7. Remove debris and excreta from primary enclosures as required by 9 C.F.R. s 3.7;

8. Keep the premises clean and free from trash as required by 9 C.F.R. s 3.7;

9. Provide a suitable method to rapidly eliminate excess water as required by 9 C.F.R. s 3.3;

10. Provide adequate lighting in indoor housing facilities as required by 9 C.F.R. s 3.2;

11. Maintain interior building surfaces so as to be substantially impervious to moisture as required by 9 C.F.R. s 3.2;

12. Allow inspection of respondent's records as required by 9 C.F.R. s 2.75; and

13. Allow inspections of respondent's facilities as required by 7 U.S.C. s 2146.

**10 Respondent is hereby assessed a civil penalty of $1,500, 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 Treasurer of the United States, and sent to John D. Griffith, Esq., United States Department of Agriculture, Office of the General Counsel, Room 2014, South Building, Washington, D.C. 20250-1400.

Respondent's license (No. 36-B-9) is suspended for 20 days and thereafter until he demonstrates to APHIS that he is in full compliance with the Act and the regulations and standards issued thereunder. When respondent demonstrates to APHIS that he is in full compliance with the Act and the regulations and standards issued thereunder, a supplemental order will be issued in this proceeding, upon the motion of APHIS, terminating this suspension after the expiration of this 20-day period.

The cease and desist provisions of this order shall become effective on the day after service of this order on respondent, and the suspension provisions of this order shall become effective on the 30th day after service of this order on respondent.

FNa 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).

FN1 The deficiency noted in Finding 8a was corrected during the October 7, 1985, inspection (Cx 3; Tr. I 90).

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