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

IN RE: S.S. FARMS LINN COUNTY, INC., JAMES W. HICKEY, MARIE HICKEY, JAMES JOSEPH HICKEY AND SHANNON HANSEN
United States
50 Agric. Dec. 476 (1991)


Case Details
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Summary:   Reliance is to be no longer placed on "severe" sanction policy set forth in prior decisions; rather, sanction in each case will be determined by examining nature of violations in relation to remedial purposes of regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to recommendations of administrative officials charged with responsibility for achieving congressional purpose.

Judge Initial decision issued by Victor W. Palmer, Chief Administrative Law Judge. Decision and order issued by Donald A. Campbell, Judicial Officer. delivered the opinion of the court.


Opinion of the Court:

This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. s 2131 et seq.), and the regulations issued thereunder (9 C.F.R. s 1.1 et seq.). On January 22, 1990, Chief Administrative Law Judge Victor W. Palmer (ALJ) issued an initial Decision and Order suspending respondent Hickey's license for one year, prohibiting respondent Hansen from obtaining a license during that year, assessing a civil penalty of $10,000, and directing respondents to cease and desist from various practices involving interfering with inspectors during the course of an inspection, recordkeeping, and maintenance of facilities.

*477 On February 26, 1990, respondents 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] Complainant filed a cross- appeal on May 18, 1990. The case was referred to the Judicial Officer for decision on August 17, 1990.

**2 Based upon a careful consideration of the record, the initial decision (with a few minor editorial changes) is adopted as the final decision, except for the omission of Findings 16(d) and 21(b). Additional conclusions by the Judicial Officer follow the ALJ's conclusions.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION

Preliminary Statement

This proceeding under the Animal Welfare Act (7 U.S.C. ss 2131-2156) was instituted by a complaint filed by the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture, which alleged that respondents wilfully violated the Act, and the regulations and standards issued under it (9 C.F.R. ss 1.1-3.142). Two of the respondents, James W. Hickey and Marie Hickey, entered into a consent decision which was served on the parties on November 27, 1989. The remaining respondents, James Joseph Hickey and Shannon Hansen, were represented by Andrew P. Ositis, Attorney, Salem, Oregon, at an oral hearing I held in Portland Oregon, on October 31, 1989, and November 1, 1989. The hearing was on the complaint's allegations and also served as the opportunity for Shannon Hansen to show cause why her application of September 29, 1989, for a dealer's license, should not be denied for the reasons expressed in a letter to her of October 17, 1989, by APHIS' Assistant Deputy Administrator for the Animal Care Sector. APHIS was represented at the hearing by Donald A. Tracy, Office of the General Counsel, United States Department of Agriculture. Briefing by the parties was completed on December 29, 1989.

*478 Upon consideration of the record evidence, and the proposed findings, conclusions and briefs filed by the parties, I have concluded that respondents, James Joseph Hickey and Shannon Hansen, violated the Act, the regulations and the standards, and that an order should be entered requiring them to cease and desist from further violations; suspending the current dealer's license now held in the name of James Joseph Hickey for one year; denying Shannon Hansen a dealer's license for the one year that the aforesaid suspension is in effect; and assessing a civil penalty of $10,000.00 against them.

Any proposed finding or conclusion, not incorporated as part of those that follow, has been denied as not in accordance with the credible, relevant and material evidence of record.

Findings of Fact (1 thru 7)

1. Respondent James Joseph Hickey has been a licensed Class B dealer holding license No. 92-B-145, and doing business as S. H. Supply, from the time the license was reissued to him on June 10, 1988. Under the license, he has operated a "cat facility" at 834 Goldfish Farm Road, Albany, Oregon 97321 and a "dog facility" at 34779 Highway 20, Lebanon, Oregon 97355.

2. Respondent Shannon Hansen has been the wife of James Joseph Hickey since their marriage in November 1987. The Class B dealer license No. 92-B- 145 was held in Shannon Hansen's name from August 17, 1987, to June 10, 1988, when she operated the "cat facility" on Goldfish Farm Road. The license was reissued in the name of her husband James Joseph Hickey on June 10, 1988, at which time he also took over the operation of a "dog facility" previously operated by his father, James W. Hickey, under a different dealer's license at Highway 20, where the Senior Mr. Hickey and his wife, Marie Hickey, reside.

**3 3. Subsequent to June 10, 1988, Shannon Hansen continued to actively participate in the operations of the "cat facility." She maintained, and was the custodian of, its records. She was the contact person who dealt with APHIS investigators and addressed their complaints pertaining to the physical conditions, records, and the tagging of cats at the facility. The dealership is a family operation in which both James Joseph Hickey and Shannon Hansen, his wife, actively participated.

4. Respondents' dealership in dogs and cats sold for medical research is the largest on the West Coast of the United States. In the most recent year *479 for which a report was filed, over 1,200 dogs and cats were sold for over $100,000.00.

5. APHIS inspected the facilities operated by the dealership as follows:

(a) On July 4, 1988, and July 18, 1988, APHIS inspected the "dog facility."

(b) On August 25, 1988, APHIS inspected both the "dog facility" and the "cat facility." On that date APHIS also inspected a "bag plant" at 35730 Highway 20 Southeast, Albany, Oregon, where animals were kept as part of respondents' dealer activities.

(c) On August 26, 1988, APHIS inspected the "dog facility."

(d) On September 1, 1988, APHIS inspected the "dog facility."

(e) On September 16, 1988, APHIS inspected the "cat facility."

6. APHIS also attempted to inspect the "dog facility" on October 26, 1988, when respondent James Joseph Hickey denied the inspectors entry and directed them to leave. At the time, the dealer's license was subject to a 21day suspension order scheduled to end within 2 days' time.

7. In conjunction with each inspection of the dealership's facilities, APHIS requested the records that a licensed dealer is required to maintain and its inspectors reviewed those which were supplied. In addition to the records reviewed at respondents' facilities, APHIS inspectors also reviewed records of suppliers from whom respondents acquired animals.

Combined Findings, Conclusions, and Discussion (8 thru 22 [FN1])

8. Two Tags of Same Numbers on Different Dogs. Dr. Richard Overton, a veterinarian employed by APHIS, found upon reviewing the records of the "dog facility," that the same tag number, A102, was listed for two different dogs. Respondents' explanation was that the supplier of the prenumbered metal tags used to identify the individual dogs had apparently stamped the same number twice. There was no other instance found by APHIS of a duplicate use of tags and respondents' explanation is plausible and is accepted. The occurrence is therefore construed as being an isolated result of inadvertence over which respondents had virtually no control. Therefore, the Act was not shown to have been violated.

*480 9. Nine Missing Cats. At the time of the August 26, 1988, inspection, Dr. Overton and Mr. Ernest Knott counted 88 cats at the Goldfish Farm "cat facility." This was 9 less than the combined total of 97 cats counted the previous day when they had inspected the "dog facility," the "cat facility" and the "bag plant." They determined on August 26, 1988, that no cats remained at the "dog facility" or the "bag plant." Respondents failed to provide any records when the August 25 inspections were made and no inventory record has been provided by respondents that accounts for the variance. Respondents contend, instead, that:

**4 The explanation is simple; the inspectors counted a cat in a burlap bag which was never received in inventory. Then they counted seven cats at the dog facility which were being processed in. While they were having lunch, those seven cats were moved to the cat facility and were then counted again when the inspectors returned from lunch. One cat escaped the next day. That totals nine cats, all duly accounted for." [Respondents' Memorandum, p. 7.]

Respondents' imaginative, post hoc explanation lacks documentary corroboration and is for that reason insufficient. It also erroneously assumes that because there was more than one facility, respondents did not have to "process" the cats until they were actually "bedded in" at the "cat facility." (Tr. 368- 369). However, to fail to tag and record every animal as soon as it comes into respondents' possession wherever that may be is violative of 9 C.F.R. s 2.75(a)(1).

Scrupulously correct recordkeeping is required by the Act to aid in the location of missing pets which may come into a dealer's possession. 7 U.S.C. ss 2131(3) and 2140. The heart of the violation committed by respondents was their failure to provide inventory records at the time of the August 25th inspection showing the whereabouts of every acquired animal. To allow respondents to escape responsibility for this recordkeeping dereliction on the basis of a subsequent undocumented explanation would thwart a prime object of the Act. It would be inconsistent with the express requirements of the Act and the pertinent departmental regulation:

7 U.S.C. s 2140. Recordkeeping by dealers, exhibitors, research facilities, intermediate handlers, and carriers

*481 Dealers and exhibitors shall make and retain for such reasonable period of time as the Secretary may prescribe, such records with respect to the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe. Research facilities shall make and retain such record only with respect to the purchase, sale, transportation, identification, and previous ownership of live dogs and cats. At the request of the Secretary, any regulatory agency of the Federal Government which requires records to be maintained by intermediate handlers and carriers with respect to the transportation, receiving, handling, and delivery of animals on forms prescribed by the agency, shall require there to be included in such forms, and intermediate handlers and carriers shall include in such forms, such information as the Secretary may require for the effective administration of this chapter. Such information shall be retained for such reasonable period of time as the Secretary may prescribe. If regulatory agencies of the Federal Government do not prescribe requirements for any such forms, intermediate handlers and carriers shall make and retain for such reasonable period as the Secretary may prescribe such records with respect to the transportation, receiving, handling, and delivery of animals as the Secretary may prescribe. Such records shall be made available at all reasonable times for inspection and copying by the Secretary.

**5 9 C.F.R. s 2.75 Records, dealers and exhibitors.

(a)(1) Every dealer . . . shall make, keep and maintain systems of records or forms which fully and correctly disclose the following information concerning each dog or cat purchased or otherwise acquired, owned, held, or otherwise in his possession or under his control . . . .

. . . .

(vi) The date and method of disposition of such dog or cat, e.g., sale, death, euthanasia or donation. . . . [Emphasis added.]

These provisions of the Act and the regulations have application to other violations charged and shall be referred to again. This violation is one of major gravity in terms of the Act's objectives. Because of this and in light of *482 the size of respondents' business, but for the fact that this violation constituted a first offense, I would have imposed the maximum allowable civil penalty of $2,500.00. Instead I have concluded that the appropriate civil penalty for this violation standing alone is $1,000.00.

10. Cats Rejected by Sepulveda Veterans Administration Medical Center. Respondents shipped seven cats to the Veterans Administration Medical Center in Sepulveda, California, which were rejected without appropriate and timely entries being made in respondents' records showing the eventual disposition of the cats. Respondents explain that the cats were returned to inventory. However, the records provided to the APHIS investigator, Mr. Knott, showed the date of disposition to be August 31, 1988, the date the cats went to Sepulveda, without a correction being made to show their rejection by Sepulveda and their return to inventory. An appropriate corrective entry should have been made as soon as the cats were returned to inventory. This could have been accomplished by crossing out the disposition date on the inventory form. Alternatively, if the animals were delivered elsewhere after the rejection and not returned to respondents' facility, the inventory form should have been, in that circumstance, amended to reflect the actual date and place of disposition. Again, in light of the Act's objectives, recordkeeping derelictions of this type are serious violations. I conclude that this also warrants the imposition of a civil penalty of $1,000.00 for the reasons expressed in finding #9, supra.

11. Two Dogs Tagged as 081. Respondents' inventory records showed the same tag number, 081, for two different dogs. One dog was a grey-black-tan hound and the other was a reddish doberman. Mr. Hickey's explanation of how this occurred is plausible. As he explained, he or an employee apparently placed the tag on one of the dogs which had been previously assigned and recorded for the other. However, this kind of mistake could thwart attempts by pet owners to recover missing animals and sanctions must be imposed to deter derelictions of this type by dealers. Upon balance, a civil penalty of $250.00 appears appropriate and warranted for this particular violation of the Act.

**6 12. Failure to Record Additional Dogs and Puppies Acquired from the Jefferson Pound Control. APHIS investigators found five instances of variances between respondents' records and those of the Jefferson County Dog Control showing the number of dogs acquired by respondents from the Jefferson Pound. Mr. Hickey admits he received more dogs and puppies than he recorded, but justifies the omissions on the basis that he took the animals not to sell them but to destroy them, a function that the dog pound's operator *483 found "upsetting." (Tr. 419-428 and 449). The number of animals Mr. Hickey shot and buried as part of his deal with the pound operator is startling. On September 5, 1988, in addition to the four dogs for which he paid, he acquired twenty-three unweaned puppies under eight weeks of age, which he transported (against APHIS regulations) in a box (Tr. 463) to the "dog facility" located at his parents' home. There he shot and buried them. The specifics of the variances between respondents' records and those of the Jefferson Pound are:

(a) Respondents' records specify that three dogs were acquired from the Jefferson Pound on August 8, 1988, when in fact four dogs were acquired on that date.

(b) Respondents' records specify that four dogs were acquired from the Jefferson Pound on August 18, 1988, when in fact nine dogs were acquired on that date.

(c) Respondents records specify that four dogs were acquired from the Jefferson Pound on August 22, 1988, when in fact six dogs were acquired on that date.

(d) Respondents' records specify that four dogs were acquired from the Jefferson Pound on September 5, 1988, when in fact twenty-seven dogs were acquired on that date.

(e) Respondents' records specify that three dogs were acquired from the Jefferson Pound on September 12, 1988, when in fact eight dogs were acquired on that date.

Again, the controlling regulation is uncompromising. A dealer must fully and correctly record the acquisition and disposition of every dog or cat "purchased or otherwise acquired, owned, held, or otherwise in his possession or under his control" (9 C.F.R. s 2.75 (a)(1)). Once Mr. Hickey accepted these dogs and puppies from the pound, he became subject as a dealer to this recordkeeping requirement. It would not have mattered if he had followed the course suggested by respondents' counsel, and "had simply taken the excess animals out behind the Jefferson County pound and shot them there." They would have been within his possession and accurate records would still have been required.

Why? To help pet owners trace missing pets is a principal reason. Respondents' counter to this is that the animals were scheduled for destruction anyway. Perhaps so, but the regulation must cover all acquisitions of dogs and cats to avoid those cases where subterfuge is used to thwart efforts to locate missing pets. For this reason, the five-day holding requirement of 9 C.F.R. s 2.101 also applies to animals a dealer has obtained *484 from a pound. (Tr. 287). Moreover, dealers are required to humanely treat animals in their possession, and it is less likely that the applicable standards will be met when there are no records showing an animal to have been in the dealer's possession. The transportation of twenty-three, unweaned puppies less than eight weeks of age, contrary to regulatory requirements, provides a concrete example of a basic humane treatment standard being ignored because it was not believed applicable.

**7 I have concluded that these are most serious violations of the Act and for each of the five instances when dogs were acquired without that fact being recorded, a civil penalty of $1,000.00, or $5,000.00 total, is appropriate and warranted.

13. Deficiencies Noted on First Inspection of July 14, 1988. On July 14, 1988, at the time of the first APHIS inspection of the "dog facility," the inspectors found doghouses with holes chewed through them and the drains servicing a concrete apron around the kennel clogged so as to present a sanitation problem. Inasmuch as these conditions were later corrected and had apparently existed prior to the time Mr. Hickey took over the facility just a few days before, I have concluded that though violations were found, no civil penalty should be imposed.

Complainant also charged that respondents failed to provide records for numerous dogs at the time of the July 14, 1988, inspection. However, on brief, the only evidentiary support for this charge proposed by complainant's counsel is testimony by Dr. Overton pertaining to a subsequent inspection he made on August 25th. Moreover, Mr. Hickey has pointed out that he had not as yet developed any records by July 14th, the old ones being in the control of his father. This count of the complaint (Par. IV) is dismissed for lack of evidence.

14. The August 25, 1988, Inspection of the "Bag Plant." When APHIS inspected the "bag plant," an unapproved site for housing animals owned or in the possession of the dealership, the inspectors found and determined that:

(a) Twenty-eight cats were housed in a closed facility not designed for animals and without adequate ventilation or lighting. They also found one cat in a burlap bag.

The pertinent regulation for indoor housing facilities, 9 C.F.R. s 3.2, provides:

(b) Ventilation. Indoor housing facilities for dogs or cats shall be adequately ventilated to provide for the health and comfort of the animals at all times. Such facilities shall be provided with fresh air *485 either by means of windows, doors, vents, or air conditioning and shall be ventilated so as to minimize drafts, odors, and moisture condensation. Auxiliary ventilation, such as exhaust fans and vents or air conditioning, shall be provided when the ambient temperature is 85^ F. or higher.

(c) Lighting. Indoor housing facilities for dogs or cats shall have ample light, by natural or artificial means, or 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.

There was no testimony or evidence as to the temperature that day. Dr. Overton's testimony on direct respecting ventilation was limited to the following (Tr. 116):

There was not adequate ventilation, both in the facility itself, because the doors were closed, and also we had a cat that was in a burlap bag.

**8 On cross-examination, Dr. Overton stated that when he entered the plant "the doors were not open and the lights were not on . . . ." (Tr. 145). Later, the following colloquy took place (Tr. 148):

Q. With the door open, there would be adequate ventilation, would there not?

A. That would be a subjective evaluation which was not made at the inspection date.

Q. And when you made the -- but you did make the subjective evaluation as to whether there was adequate ventilation at that point?

A. There was not.

Q. This is a closed building, right?

A. It was not adequate when we did the inspection.

Q. No breeze blowing through it?

*486 A. No.

Though the evidence is sketchy and fails to note the temperature that day, I find that the cats were in cages in a room with the doors and windows shut, without fans or air conditioning in operation. August 25th was a summer day, and I believe it reasonable to conclude that Dr. Overton correctly determined that the ventilation was inadequate and did not comply with the cited regulation. This was the second time the new Hickey operation had been inspected. By this time the Junior Mr. Hickey should have known that quality care must be provided these cats regardless of where he kept them.

I have also concluded that Dr. Overton correctly determined that the lighting was inadequate.

A principal purpose of the controlling regulation pertaining to lighting is to facilitate inspection and cleaning, but that is not its only purpose. The animals' health and well-being requires that they have adequate light during the entire working period, i.e., normally eight hours per day. To place them in a room with closed doors and windows and shut off the lights as respondents did, violates the regulation. A civil penalty of $500.00 appears warranted for the violation of the ventilation requirement and an additional $500.00 civil penalty is appropriate for the violation of the lighting requirement.

Keeping a cat confined in a burlap bag violated the regulation pertaining to "primary enclosures," 9 C.F.R. s 3.4(b)(1):

Primary enclosures shall . . . 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.

Respondents state in defense that they had not yet acquired the cat and someone must have left it to sell it to them. Inasmuch as respondents chose to house cats at the "bag plant," it became a facility subject to all APHIS regulations governing humane care and treatment; any cat found there was entitled to the protection of those regulations. I believe this to be implicit in the regulations and any other interpretation would facilitate their evasion. This was a gross form of inhumane treatment for which the maximum civil penalty of $2,500.00 is appropriate.

(b) Dr. Overton noted in his report that 13 cats were without feed and their feeding pans were dirty. Also, the watering pans for 19 cats were noted to be dirty and some were empty.

**9 *487 The evidence as to these conditions is sketchy. The regulations only require that cats be fed and watered once a day. Moreover, on cross-examination, Dr. Overton admitted that it was possible for the conditions he noted to have resulted from the cats having been fed earlier that day and the dishes not being removed the minute each finished eating. (Tr. 164). In these circumstances the evidence presented is insufficient to support the conclusion that the regulations or the Act were violated in these respects.

(c) None of the 28 cats at the "bag plant" were wearing tags, no tags were affixed to the cages, and they were not identified by any record maintained at the "bag plant." This lack of verifiable identification of each cat held at the "bag plant" strikes against the very heart of the Act. Without record entries, without any tags or proper identifying labels for each cat, there is no way to locate a missing pet which has come into a dealer's possession. Normally, I would conclude that there was a separate violation committed in respect to each of the 28 cats and the appropriate civil penalty would be at least $250.00 per violation or $7,000.00 total. However, complainant only charged respondents with two violations, one for the failure to tag and identify all of the cats and the other for failure to provide records at the "bag plant." In this circumstance the maximum civil penalty of $2,500.00 for each of the two violations as charged, or $5,000.00 total, is concluded to be appropriate and warranted.

15. The August 25, 1988, Inspection of the "Dog Facility". On August 25, 1988, when APHIS inspectors conducted an inspection of the "dog facility" in Lebanon, Oregon, they observed and reported that:

(a) There was a pen with a hole in it large enough for a dog to put through its head.

The pertinent regulation provides (9 C.F.R. s 3.1(a)):

Structural strength. Indoor and outdoor housing facilities for dogs or cats shall be structurally sound and shall be maintained in good repair, to protect the animals from injury, to contain the animals, and to restrict the entrance of other animals.

I do not find this violation to be an instance of long-standing neglect so as to elevate its status to that of one that is in any sense grave in nature. I conclude that the appropriate civil penalty for this violation standing alone, to be $250.00.

(b) Two incompatible dogs were found to be housed together.

*488 Although this is a circumstance a dealer must guard against, and violates the Act and the regulations, there is no evidence that it resulted other than through inadvertence or that it was allowed to long continue after being discovered. No civil penalty is being assessed in this respect.

(c) Cats were left tied up in onion sacks.

The pertinent regulation pertaining to "primary enclosures" for cats is 9 C.F.R. s 3.4, which has been previously quoted. Respondents originally attempted to defend against this charge by laying blame on their suppliers. Only in the course of Mr. Knott's cross-examination did we learn that he observed the cats to have been delivered in cages and saw respondents' employee actually transfer the cats to the onion sacks. Mr. Hickey gave testimony denying he had knowledge of the use of onion sacks by the employee. However, he went on to explain why there would be reason to put feral or "wild" cats in these sacks to facilitate their handling. Moreover, Mr. Knott observed there was "a considerable pile" of these onions sacks from which David Stephens, the employee, would pick one into which a cat would be transferred, tied and placed on the ground. (Tr. 235). I have found Mr. Hickey's testimony to lack credibility. I infer that the use of onion sacks was a customary practice of his employee and that Mr. Hickey knew about it and condoned it. By his testimony, Mr. Hickey demonstrated a complete lack of compassion for animals. I have no doubt that because he believed the sacking of cats could facilitate his business operation, he had no qualms about his employee doing so.

**10 Again, I would have treated each cat found to have been tied in an onion sack as evidence of a separate violation and would have imposed the maximum civil penalty for each cat mistreated this way. But the inspectors never recorded the number of cats they found [FN2] and could only speculate that there were four or five (Tr. 123), and complainant has treated the practice throughout the proceeding as a single violation. The maximum civil penalty for a single violation is $2,500.00 and that amount should therefore be imposed as the minimum for this practice.

(d) A large cat may have been enclosed in a cage which was too small. Although this practice would violate pertinent regulations and thereby the Act, I have not been able to find nor did complainant direct me to any *489 testimony supporting this charge. Inasmuch as the adequacy of the size of a cage for a particular cat is a highly debateable matter, testimony was needed to allow an opportunity for appropriate cross-examination. The charge is dismissed.

(e) Records requested at the time of the inspection were not provided. The importance of all records, particularly those showing the source of all animals and their disposition, being made immediately available at the time of an unannounced inspection, cannot be overstated. To allow a dealer to furnish the records at a later date is to permit an opportunity for those records to be changed to conceal activities in violation of the Act.

The evidence was that respondents failed to provide needed records at each of the three locations inspected on August 25th. There were animals at each location and the failure to immediately provide records at each upon request is a separate violation. The appropriate civil penalty to be assessed for the lack of records at the "dog facility" is $1,000.00.

16. The August 25, 1988, Inspection of the "Cat Facility". On August 25, 1988, when APHIS conducted an inspection of the "cat facility" in Albany, Oregon, they observed and reported that:

(a) Eight cats were housed in groups of two or more in cages which lacked elevated resting surfaces.

The regulation governing "primary enclosures" for dogs and cats requires for those used to house cats (9 C.F.R. s 3.4(a)(2)(ii)):

Each primary enclosure shall be provided with a solid resting surface or surfaces which, in the aggregate, shall be of adequate size to comfortably hold all occupants of the primary enclosure at the same time. Such resting surface or surfaces shall be elevated in primary enclosures housing two or more cats.

After being advised that the resting boards were required in cages housing more than one cat, Mr. Hickey did the necessary work and installed the boards by the following day. He states he was previously unaware of the requirement which I find to be plausible. And although the work was not completed until after a given deadline had passed, I conclude that the imposition of a civil penalty is not appropriate for this violation.

**11 (b) Unclean food receptacles were found in the cages of some cats.

Again, it is uncertain from the evidence whether the receptacles had been unclean for more than a day or became unclean after a previous feeding. No violation is found to have been committed in this respect.

*490 (c) A lack of clean watering receptacles for some cats was noted.

As before, it is uncertain if the cats had been watered earlier that day and the receptacles removed. The pertinent regulation (9 C.F.R. s 3.6) does not require water to be accessible at all times. It allows, as an alternative, that:

[P]otable liquids shall be offered to such animals (dogs and cats) at least twice daily for periods of not less than 1 hour . . . .

The evidence is insufficient to establish non- compliance with this requirement and no violation is found.

(d) Cats were observed to not be tagged.

. . . .

(e) Requested records were not supplied on the day of the inspection, for which a $1,000.00 civil penalty is appropriate. The supporting reasons for this sanction were stated in finding #15(e), supra.

17. The August 26, 1988, Inspection of the "Dog Facility". On August 26, 1988, when APHIS inspectors conducted an inspection of the "dog facility" in Lebanon, Oregon, they observed and reported that a female doberman type dog needed veterinary care for discharges from both eyes.

Dr. Overton testified that the condition he observed was, in his expert opinion, extremely painful for the animal, could injure the continued health of the animal, and was a condition that had been an ongoing problem.

The pertinent regulation, 9 C.F.R. s 3.10, provides:

(b) Each dog and cat shall be observed daily by the animal caretaker in charge, or by someone under his direct supervision. Sick or diseased, injured, lame, or blind dogs or cats shall be provided with veterinary care or humanely disposed of . . . .

It is concluded that respondents violated this regulation and thereby the Act, and the appropriate sanction for this violation is $500.00. Humane care and treatment of animals held by dealers and others subject to the Act is a principal objective of the Act and the testimony shows the Act was violated in this important respect. However, I believe that the dog's condition was not demonstrated to be one where she was suffering such stress that a civil penalty above $500.00 would be appropriate.

18. Verbal Abuse and Threats Against Dr. Overton by Mr. Hickey. As Dr. Overton was completing his inspection of the "dog facility" on August 26, *491 1988, he was accosted and subjected to verbal abuse by James Joseph Hickey. Dr. Overton testified Mr. Hickey (Tr. 130):

jumped up and came over to me and told me that--stood within about two inches of my face and screamed at me, made all sorts of--he was distressed, made all sorts of statements that he was going to stop me, or he--somebody was going to do something to me, or I was going to be sued, or--those kinds of statement.

**12 Dr. Overton later specified the statements made by Mr. Hickey (Tr. 131):

He said that--he said that he was going to stop me, and that I had been hard on his family, and that I had not had my--. . . ass kicked recently, but somebody is going to do it, or something similar to that. It would not surprise him to have something like that happen to me real soon.

Q. And this was said in a screaming voice?

A. Right.

No Government official attempting to perform his duties should ever be subjected to this kind of abuse. When it occurs, the inspector cannot be said to have been permitted the access to a licensee's facility required under 9 C.F.R. s 2.126. For this violation the maximum civil penalty of $2,500.00 is appropriate and shall be imposed.

19. Five-Day Holding of Seven Cats. The complaint charges that respondents shipped on August 30, 1988, seven cats they acquired on August 25, 1988, in violation of 7 U.S.C. s 2135 and 9 C.F.R. s 2.101.

No dealer . . . shall sell or otherwise dispose of any dog or cat within a period of five business days after the acquisition of such animal . . . .

The pertinent regulation (9 C.F.R. s 2.101) is to the same effect.

Through examination of respondents' records, APHIS learned that seven cats acquired on August 25, 1988, were delivered to Sepulveda, California, on August 31, 1988. The inspectors believed that the transportation of the cats from Oregon must have begun before the end of the fifth business day, August 30, 1988, to have been received at Sepulveda on August 31, 1988. This belief was in part based on a letter from Mr. Hickey to the VA Hospital *492 in Sepulveda in which he referred to the cats arriving "at Sepulveda at 8 AM the following morning." (Tr. 471; CX 34).

The only evidence respecting the normal end of respondents' business day and the time it took to drive to Sepulveda, came from Mr. Hickey, himself. (Tr. 464-475). He testified that the "dog facility" normally closed at 4:30 P.M. and the drive took 16 to 19 hours. He also denied that he necessarily arrived at Sepulveda at 8:00 A.M. Accordingly, there is insufficient evidence to prove non-compliance with the five-day holding requirement, and this count of the complaint is dismissed.

20. Temporary Denial of Access to the "Dog Facility" on September 1, 1988. When APHIS inspectors arrived at the "dog facility" in Lebanon, Oregon, on September 1, 1988, they encountered Mrs. Marie Hickey who denied them access and shouted at them.

I do not find that her conduct was sufficient to intimidate the inspectors. She is an older woman; they are strong and sturdy men. They were eventually given access by Mr. Joseph Hickey, when he arrived at the facility, but the inspectors must be afforded access immediately upon their arrival. By failing to provide ready access to the inspectors, respondents violated the pertinent regulation (9 C.F.R. s 2.126), and thereby the Act. The appropriate civil penalty for this particular violation is $500.00.

**13 Again, it is to be stressed that during normal business hours, some employee or agent has to be available at each facility operated by a dealer, to give full and ready access to it and its records, for any unannounced APHIS inspection.

21. September 16, 1988, Inspection of the "Cat Facility". (a) When APHIS inspectors requested records at the time of their September 16, 1988, inspection of the "cat facility," once again, the records were not then provided. (Tr. 56, 269). The appropriate sanction for this recurring violation is $750.00.

(b) . . . .

22. Denial of Access to the "Dog Facility" on October 26, 1988. On October 26, 1988, Joseph Hickey denied APHIS inspectors access to the "dog facility" at Lebanon, Oregon, and directed them to leave. He was subject, at the time, to a 21-day suspension and for that reason believed his operations were not subject to APHIS inspection.

The Act, however, authorizes such inspections (7 U.S.C. s 2146):

The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer . . . has violated or is violating [the Act] or any regulation or standard issued thereunder, *493 and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and . . . records . . . of any such dealer . . . .

Nothing restricts this authority of inspection to licensed dealers. All dealers are subject to investigations and inspections, and a dealer is defined to include any person who, in commerce, buys or sells dogs or other animals for research and derives over $500.00 gross income from those sales during any calendar year. (7 U.S.C. s 2132(f)).

The suspension order was about to be lifted at the time of the denied inspection. Certainly, it was reasonable and appropriate for an inspection of the facilities to be conducted before the imminent resumption of respondents' operations as a licensee. The appropriate civil penalty for this recurrent denial of access is a civil penalty of $1,000.00.

Sanctions and Denial of License

Complainant has requested the issuance of an order requiring respondents to cease and desist from further violations of the Act and the regulations; a civil penalty of $10,000.00; a one-year suspension of the dealer's license now held in the name of James Joseph Hickey; and the denial of a dealer's license to Shannon Hansen for the one year that the existing license is suspended.

This request must first be measured against the Act's provisions respecting sanctions set forth in 7 U.S.C. s 2149(a) and (b):

(a) 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.

**14 (b) 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 $2,500 for each such violation, and the Secretary may also *494 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. . . . 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 . . . .

The Act also requires dealers to be licensed by the Secretary (7 U.S.C. s 2134) and restricts the issuance of licenses to those who have made application in the prescribed form and manner and have demonstrated that their facilities comply with the standards promulgated by the Secretary (7 U.S.C. s 2133). Elsewhere the Act (7 U.S.C. s 2151) authorizes the Secretary to "promulgate such rules, regulations and orders as he may deem necessary in order to effectuate the provisions of this chapter." Pursuant to these provisions the Secretary issued the following regulation:

9 C.F.R. s 2.11 Denial of license.

A license will be issued to any applicant when the requirements of ss 2.1, 2.2, and 2.3 have been met; however, if the Secretary has reason to believe that the applicant is unfit to engage in the activity for which application has been made by reason of the fact that the applicant has within 2 years prior to filing the application engaged in any activity in violation of any provisions of the Act, the regulations, or standards, which previously has not been the subject of an administrative proceeding under the Act resulting in the imposition of a sanction against the applicant, an administrative proceeding shall be promptly instituted in which the applicant will be afforded an opportunity for a hearing in accordance with the rules of practice under the Act, for the purpose of the applicant showing cause why the application for license should not be denied. In the event it is determined that the application should be denied, the applicant shall not be precluded from again applying for a license after one year from the date of the final order denying the application.

Applying these various provisions to this case, I have concluded that the complainant's recommendations are appropriate and fully warranted.

The most recent annual report filed for the dealership with APHIS shows its gross annual income to be over $100,000.00. Mr. Hickey testified that the *495 dealership was the largest supplier of dogs and cats for medical research on the West Coast. Many of the proven violations were extremely grave in nature, and many were recurrent.

Mr. Hickey's personal conduct and attitude in dealing with APHIS investigators has been confrontational and defiant. He is easily offended. He is hot-tempered. He went so far as to physically threaten one member of an APHIS investigatory team.

**15 Mr. Hickey's compliance with APHIS' requirements has at best been begrudging. His concern for the animals he buys and sells seems limited to how acceptable their appearance is to his customers. I doubt he would follow APHIS' humane care standards except to protect his license. For example, Mr. Hickey did not believe the standards applied when he transported 23 unweaned puppies in a box to his father's farm for their destruction as part of his arrangements with a dog pound supplier, so he did not comply with the standards.

Mr. Hickey is indifferent to the distress and shock experienced by the animals he buys and sells. When cats were delivered to his "dog facility," his employee would thrust them into onions sacks, where they were left confined for future processing. Mr. Hickey at first denied knowledge of the practice, but later he attempted to justify it. I believe the bagging of cats was probably done with his knowledge and at his direction. I do not find Mr. Hickey to be a credible witness. But even if I had believed he lacked knowledge of the practice, the Act makes it clear that an act of an employee is deemed the act of the dealer (7 U.S.C. s 2139).

In sum, I have concluded that Mr. Hickey committed many recurrent violations of the utmost gravity, and that his conduct and testimony show he did not act in good faith. Applying the statutory test to each individual violation which was proven would have resulted in civil penalties totalling $25,750.00. However, it is customary not to impose a civil penalty higher in amount than complainant's recommendation.

The recommended $10,000.00 civil penalty in combination with a one-year suspension of the dealer's license is, in my opinion, in every sense warranted. A cease and desist order is also needed to prevent future violations.

Respondent Shannon Hansen had removed her name from the license and contends for that reason, she should not be subject to an order in this proceeding and should now be granted a new dealer's license in her own name.

To accept Ms. Hansen's arguments would permit sham and subterfuge. A family operated dealership would be allowed to continue unaffected by the *496 suspension order that is being entered. The suspension order would be rendered meaningless and the objectives of the Act would be subverted if a new dealer's license were issued to Ms. Hansen, who actively participated in the existing dealership's operation.

As an appropriate exercise of the Secretary's rulemaking powers under the Act, 9 C.F.R. s 2.11 was issued to provide a necessary mechanism for denying a new license to one who has actively engaged in an activity which violated the Act, the regulations, or standards. Such a denial of a new license is appropriate here. Ms. Hansen should also be subject to the cease and desist order and the sanctions entered against her husband as a participant in the operation and ownership of the existing dealership.

Accordingly, the following order shall be issued.

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

**16 Respondents contend that the evidence does not adequately support the ALJ's findings of fact as to the violations, and as to Shannon Hansen's involvement with the regulated business, but there is much more than a preponderance of the evidence, which is all that is required. [FN3] Although there is a conflict in testimony as to many of the violations, great weight is given to the credibility determinations by the ALJ, who saw and heard the witnesses testify. In re Victor L. Kent & Sons, Inc., 47 Agric. Dec. 692, 70407 (1988). [FN4] Furthermore, since the individual civil penalties assessed by the ALJ total $25,750, and the sanction actually imposed totals only $10,000, even if the evidence failed to support numerous individual violations, the $10,000 civil penalty would not be changed.

Respondents contend that they were denied a fair hearing, but an examination of the record demonstrates that the hearing was fair and impartial.

*497 Respondents contend that the violations were not willful, but a violation is willful if it is done intentionally or with careless disregard of statutory requirements. In re Capital Produce Co., 49 Agric. Dec. 531, slip op. at 2232 (Feb. 5, 1990), appeal docketed, No. 901732 (4th Cir. Mar. 5, 1990), and cases cited.

Respondents contend that the sanction is too severe, but the ALJ's decision reflects the serious nature of the numerous violations, many of which were recurrent. The ALJ's sanction coincides with the sanction recommended by the administrative officials as the sanction necessary to achieve the remedial purposes of the Act. The administrative recommendation as to the appropriate sanction is entitled to great weight, in view of the experience gained by the administrative officials during their day-to-day supervision of the regulated industry.

It is appropriate to state expressly the practice that has been followed by the Judicial Officer in recent cases, viz., that reliance will no longer be placed on the "severe" sanction policy set forth in many prior decisions, e.g., In re Spencer Livestock Comm'n Co., 46 Agric. Dec. 268, 43562 (1987), aff'd on other grounds, 841 F.2d 1451 (9th Cir. 1988). Rather, the sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.

Complainant contends on appeal that the ALJ erred in concluding that no violation occurred when two cats were housed in one cage, with the tags affixed to the cage housing, rather than on the cats. The regulations require that each cat be individually tagged (9 C.F.R. s 2.50(a)(b)), but an exception is permitted when a dealer has been unable to affix a tag onto the cat's neck. The exception provides that each "primary enclosure shall contain no more than one adult cat without an affixed collar and official tag" (9 C.F.R. s 2.50(c)). The ALJ concluded that "[a]dministrative convenience by itself, is not a sufficient reason for a regulatory requirement" (Initial Decision at 19). However, the regulations are presumptively valid (United States v. Rock Royal Co-op, Inc., 307 U.S. 533, 567-68 (1939); Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185 (1935); Borden's Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209 (1934)), and the administrative record, which formed the basis for the Secretary's regulations, has not been presented in this proceeding. (In fact, the validity of the regulations was not challenged by respondents, but only by the ALJ.) Accordingly, the ALJ erred in concluding that the regulation *498 was invalid. Nonetheless, since the civil penalties assessed total $25,750, but the actual civil penalty ordered is only $10,000, no useful purpose would be served by making additional findings of fact and conclusions with respect to this issue.

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

Order

The respondents, James Joseph Hickey and Shannon Hansen, shall comply with every provision of the Animal Welfare Act and the regulations and standards thereunder, and, in addition:

1. Respondent James Joseph Hickey's license under the Animal Welfare Act is hereby suspended for one year and thereafter until respondent's facility is found by APHIS to be in compliance with the Act and the regulations and standards thereunder.

2. Respondent Shannon Hansen is prohibited from obtaining a license under the Act for one year.

3. Respondents, Mr. Hickey and Ms. Hansen, are assessed, jointly and severally, a civil penalty of $10,000, to be made payable, within 120 days after service of this order on respondents, to the Treasurer of the United States, and forwarded to Donald A. Tracy, Esquire, United States Department of Agriculture, Office of the General Counsel, Room 2014, South Building, Washington, D.C. 202501400.

4. Respondents, their agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards thereunder, and in particular shall cease and desist from:

(a) interfering with APHIS inspections of their facilities;

(b) failing to keep and maintain accurate and complete records of all animal transactions;

(c) failing to provide their records to APHIS officials at the time of inspections; and

(d) failing to maintain their facilities in accordance with the standards involving housing, veterinary care, and feeding.

The suspension and license prohibition provisions shall become effective on the 60th day after service of this order upon respondents. The cease and desist provisions shall become effective on the day after service of this order on respondents.

 

FNa The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. ss 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1280 (1988). 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 To avoid repetitious discussions of the various violations alleged in the complaint, the factual findings as to each have been combined with pertinent conclusions, and with a discussion of the gravity of any proven violation and the appropriate civil penalty which should attach to that violation.

FN2 The APHIS inspectors allowed the cats to remain in the sacks for about one hour before taking action needed to have them removed to a proper enclosure. This is most disturbing, and I recommend that supervising APHIS officials review the investigatory practices now being employed and the instructions given to inspectors.

FN3 See Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92- 104 (1981); In re Rowland, 40 Agric. Dec. 1934, 1941 n. 5 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1346 (1978), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980).

FN4 The Department's refusal to issue a license to Shannon Hansen during the suspension period applicable to her husband, James Joseph Hickey, is similar to the Department's action under the Packers and Stockyards Act in In re Mattes Livestock Auction Market, Inc., 42 Agric. Dec. 81 (1983), aff'd, 721 F.2d 1125 (7th Cir. 1983).

 

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