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

IN RE: PET PARADISE, INC.
United States
51 Agric. Dec. 1047 (1992)


Case Details
Printable Version
Summary:   Where complaint advised respondent of exact matters at issue, there is no basis for dismissing any allegations of complaint merely because they failed to specify subsections of regulations or standards involved in some of alleged violations. Formalities of court pleading are not applicable in administrative proceedings. Findings of fact need only be supported by a preponderance of the evidence. A violation is willful if the person intentionally does an act which is prohibited or acts with careless disregard of statutory requirements.

Judge Initial decision issued by Paul Kane, 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 July 8, 1991, Administrative Law Judge Paul Kane (ALJ) issued an Initial Decision and Order assessing a civil penalty of $5,000, suspending Respondent's license for 30 days, and directing Respondent to cease and desist from violating the Act, regulations and standards, and, in particular, to cease and desist from operating as a dealer within the meaning of the Act and regulations without effectuating 11 specific housekeeping, husbandry and recordkeeping requirements.

   On November 25, 1991, Complainant appealed to the Judicial Officer, to *1048 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). [FN1] Complainant is, in the main, satisfied with the ALJ's Order, but not with his reasoning. The Respondent filed an Appeal on January 8, 1992, to which Complainant replied on January 30, 1992. The case was referred to the Judicial Officer for decision on February 3, 1992.

    **2 Based upon a careful consideration of the record, I agree with the bulk of Complainant's views, and disagree entirely with Respondent's views. The Preliminary Statement, the Applicable Statutes, and the Findings of Fact are taken from the ALJ's Initial Decision, with additions and changes shown by brackets, deletions shown by dots, and minor editorial changes not specified. The Conclusions of Law and Discussion are by the Judicial Officer.

[Preliminary Statement]

   This decision is promulgated pursuant to the Administrative Procedure Act, Pub. L. No. 89-554, 80 Stat. 384 (1966), as amended, Pub. L. No. 95-251, 92 Stat. 183 (1987), [FN2] the Rules of Practice governing proceedings under the Animal Welfare Act, 9 C.F.R. s 4.1 (1990) and the Rules of Practice of the Department of Agriculture Governing Formal Adjudicatory Administrative Proceedings, 7 C.F.R. ss 1.130 .151 (1990). This is a disciplinary proceeding under the Animal Welfare Act of 1970, and amendments of 1976, Pub. L. No. 91-579, 84 Stat. 1560 (1970), renumbered and amended Pub. L. No. 94 279, 90 Stat. 417 (1976), [FN3] hereinafter referred to as the Act, instituted by a Complaint filed on November 16, 1989, by the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture.

    *1049 The Complaint alleges that the Respondent, Pet Paradise, Inc., hereinafter Respondent, wilfully violated the regulations and standards issued under the Act, 9 C.F.R. s 1.1 et seq. Specifically, the Complaint alleges that Respondent is a licensee of the United States Department of Agriculture, that Respondent is a dealer as defined in the Act and regulations issued pursuant to the Act's authority, and that Respondent violated numerous sections of the Secretary's regulations and standards. By notice of the Complaint, the Department would have Respondent's license suspended, would require the payment of civil penalties and would impose specific operating orders.

   The Respondent filed an Answer on December 7, 1989, in which it denies the allegations of the Complaint.

   An oral hearing was held on June 26, 1989, in Louisville, Kentucky, before [the ALJ]. Irvin Wilson, a corporate official of Respondent, appeared on behalf of the Respondent. J. LaVonne Martin, Esq., Office of the General Counsel, United States Department of Agriculture, appeared on behalf of the Complainant.

   The parties have submitted proposed findings of fact, proposed conclusions of law and briefs. All proposed findings, conclusions and arguments have been considered. To the extent indicated, they have been adopted. All other findings, conclusions and arguments have been rejected as irrelevant, immaterial or lacking legal or evidentiary basis.

   Complaint counsel proposes an Order by which Respondent's license would be suspended for 30 days, [FN4] by which Respondent would be required to pay a civil penalty of $5,000, and by which Respondent would be required to observe specific operating orders.

    **3 Based upon the evidence of record, it is concluded that the Respondent, as a licensee and dealer within the meaning of the Act, has violated regulations and standards issued under the Act. Accordingly, an Order shall be entered, as requested by Complaint counsel directing Respondent to cease and desist from further violations, assessing Respondent a civil penalty in the amount of $5,000 and suspending Respondent's license for 30 days.

Applicable Statutes . . . .

    *1050 The Act at 7 U.S.C.A. s 2131 contains Congress' statement of policy with regard to its intent assuring the care and treatment of animals. In part, this is:

   The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commence or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order--

   (1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment. . . .

   The Congress further finds that it is essential to regulate, as provided in this chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use.

   The Secretary, by the Act, at 7 U.S.C.A. s 2151, is authorized to issue "such rules, regulations, and orders as he may deem necessary in order to effectuate the purpose of this chapter." And, further, the Secretary is authorized to regulate the conduct of dealers by the Act, at 7 U.S.C.A. s 2143[(a)], as follows:

   (1) The Secretary shall promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.

   (2) The standards described in paragraph (1) shall include minimum requirements--

   (A) for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and *1051 temperatures, adequate veterinary care, and separation by species where the Secretary finds necessary for humane handling, care, or treatment of animals. . . .

   Section 2(f) of the Act, 7 U.S.C.A. s 2132(f), states in part:

   (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--

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

    **4 (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;

   The punitive provisions of the Act, provide, at 7 U.S.C.A. s 2149, as follows:

   (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.

    *1052 (b) . . . .

   Any dealer, exhibitor, research facility, intermediate iate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals. The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations. . . .

   The Department's Complaint against this Respondent alleges . . . that Respondent has violated 3 regulations and 24 standards [,which are based upon the statutes excerpted, supra]. . . .

Findings of Fact

   1. Pet Paradise, Inc., hereinafter referred to as Respondent, is a corporation whose address is 1005 Wall Street, Jeffersonville, Indiana 47130. (Respondent's Proposed Findings #1)

   2. The Respondent, at all times material herein, is licensed and operating as a dealer as defined in the Act and regulations. (Respondent's Proposed Findings #2)

   3. At the time of Respondent's application for a license it was given a copy of the Act, the regulations and standards promulgated under the Act and agreed in writing to comply with them. (Respondent's Proposed Findings #3) Respondent's license number 32-13-83 was initially issued on July 15, 1987. (CX 1)

    **5 *1053 4. One of the witnesses presented by Complaint counsel at the hearing held on June 26, 1990, Thomas Gomez, D.V.M., testified that he inspected Respondent's facilities and inspected Respondent's records on 14 different occasions between September 14, 1988, and July 18, 1989. (Tr. 9, 53, 173) Dr. Gomez was an employee of the Animal [and] Plant Health Inspection Service of the United States Department of Agriculture and was responsible for enforcement activities pursuant to the Act. (Tr. 7, 8) The Department normally inspects the facilities of its licensees no more than twice a year. (Tr. 177)

   5. On December 29, 1988, Respondent received from Dr. Gomez a so-called warning ticket. (CX 6; Tr. 176) By this instrument, Respondent was advised that perceived violations of 9 C.F.R. s 2.50 and s 2.100 existed. This ticket was issued pursuant to the policy of the Animal and Plant Health Inspection Service by which compliance with the Act, regulations and standards is to be voluntarily obtained in the furtherance of educational processes. (Tr. 174)

   6. Count III of the Complaint is based upon an inspection of Respondent's facilities and records on or about May 13, 1989. (CX 3) Dr. Gomez conducted this inspection. (Tr. 14, 52-54) Count IV of the Complaint is based upon an inspection of Respondent's facilities and records on or about June 1, 1989. (CX 4) Dr. Gomez conducted this inspection. (Tr. 54) Count V of the Complaint is based upon an inspection of Respondent's facilities and records on or about July 18, 1989. (CX 5) Peter Kirsten, D.V.M., a witness called by Complaint counsel, conducted this inspection (Tr. 185) [, accompanied by Dr. Gomez (Tr. 55)].

   7. The table below relates the proof received into this record to the allegations of violations of the Department's regulations and standards as expressed in the Complaint. Violations are found to exist where proof is cited:

Regulation    Complaint                                                        

  or                                                                           

  Standard                                                                     

  Alleged to                                                                   

  be                                                                           

  Violated                                                                     

(All 9        Paragraph                  [Proof]                               

  C.F.R.)                                                                      

------------  -------------------------  --------------------------------------

2.50(b)       III, B, 1                  [CX 3, pages 1, 5A]                   

2.75(a)(1)    III, B, 2                  CX 3, pages 1A, 5A                    

              V, B                       CX 5, page 1A                         

2.100(a)      III, A                      This is an all-inclusive regulation. 

              IV                         It requires compliance with all       

V, A           standards expressed in 9                                        

                C.F.R. Part 3. It is                                           

                violated if any                                                

                standard in 9 C.F.R.                                           

                Part 3 is violated.                                            

                Proof exists that                                              

                various sections of 9                                          

                C.F.R. Part 3 were                                             

                violated. Therefore                                            

                this regulation was                                            

                violated.                                                      

3.1(a)        III, A, 1                  CX 3, page 1A                         

@@3.1(c)      III, A, 2                  CX 3, page 1A                         

              V A, 2                     CX 5, page 1A                         

3.2(d)        III, A, 3                  CX 3, page 1A                         

              IV, A                      CX 4, page 1A                         

              V, A, 3                    CX 5, page 1A                         

3.4(b)(2)     III, A, 5                  CX 3, page 1A                         

              V, A, 4                    CX 5, page 1A                         

3.4(b)(3)     V, A, 4                    CX 5, page 1A                         

3.5[(b)       III, A, 6                  [CX 3, pages 1A, 4B]                  

              IV, D                      [CX 4, pages 1A, 2B]                  

              V, A, 5                     CX 5, pages 1A, 2B .                 

3.6           III, A, 6                  CX 3, page 1A                         

IV, D         CX 4, page 1A                                                    

              V, A, 5                    CX 5, page 1A                         

3.7(c)        III, A, 7                  CX 3, page 1A                         

              IV, E                      @@CX 4, page 1A                       

3.7(d)        III, A, 9                  CX 3, page 1A                         

              V, A, 8                    CX 5, page 1A                         

3.10(a)       V, A, 9                    [CX 5, pages 1A, 4B]                  

3.25(c)       III, A, 2                  CX 3, page 1A                         

3.28(a)        IV, B                     CX 4, page 1A                         

3.34(a)       V, A, 9                    [CX 5, pages 1A, 4B]                  

3.51(d)       V, A, 3                    CX 5, page 1A                         

3.54[(b)]     III, A, 6                  [Not proven by CX 3]                  

              V, A, 5                    [Not proven by CX 5]                  

3.55          III, A, 6                  CX 3, page 1A                         

              IV, D                      CX 4, page 1A                         

V, A, 5       CX 5, page 1A                                                    

3.56[(a)]     V, A, 6                    [CX 5, pages 1A, 2B]                  

3.58[(a)]     III, A, 8                  [CX 3, pages 1A, 6B]                  

              IV, F                      [CX 4, pages 1A, 2B]                  

3.59(a)       V, A, 9                    [CX 5, pages 1A, 4B]                  

3.76(d)       V, A, 3                    CX 5, page 1A. Discretion is to be    

                                           applied in the enforcement of this  

                                           standard. See 9 C.F.R. Part 3,      

                                           subpart D, footnote.                

3.78(a)       III, A, 4                  CX 3, page 1A                         

              IV, B                      CX 4, page 1A                         

3.81[(c)]     V, A, 7                    [CX 5, page 1A, 4B]                   

3.81(c)       III, A, 7                  Not proven. CX 3 reveals correction   

                                           made from previous inspection.      

3.84(a)       V, A, 9                    [CX 5, pages 1A, 4B]                  

3.125(a)      III, A, 4                  [CX 3, pages 1A, 1B]                  

IV, B         Not proven by CX 4                                               

              V, A, 1                    CX 5, page 1A                         

3.125(c)      III, A, 2                   CX3, page 1A                         

              V, A, 2                    CX 5, page 1A                         

3.128         III, A, 5                  CX 3, page 1A                         

              IV, C                      CX 4, page 1A                         

              V, A, 4                    CX 5, page 1A                         

3.131[(b),    V, A, 6                    [CX 5, pages 1A, 4B]                  

  (c)]                                                                         

              V, A, 7                    [CX 5, pages 1A, 4B]                  

3.131(c)      III, A, 7                  CX 3, page 1A                         

              IV, E                      CX 4, page 1A                         

3.131(d)      III, A, 9                  CX 3, page 1A                         

              V, A, 8                    CX 5, page 1A                         

3.134(a)      V, A, 9                    [CX 5, pages 1A, 4B]                  

3.134(b)      III, A, 9 [FN*]               [CX 3, pages 1A, 4B]               

              IV, G                      [CX 4, pages 1A, 3B]                  

              V, A, 10                   [CX 5, pages 1A, 2B]                  

FN* The 2nd so numbered                                                        

 

    **6 8. . .

 

*1056 Conclusions of Law

 

   Based upon the record in this matter, it is concluded that Respondent violated the regulations and standards as described in the Complaint, and as more particularly set forth in Finding of Fact No. 7, supra. Specifically, it is *1057 concluded that:

   1. The Secretary has jurisdiction in this matter.

   2. Respondent is a dealer as defined in the Act.

   3. The APHIS inspection of May 13, 1989, establishes that Respondent wilfully violated:

   (a) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.1(a) of the standards (9 C.F.R. s 3.1(a) (1989)) by failing to provide a housing facility for a dog which was structurally sound;

   (b) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.1(c), 3.25(c) and 3.125(c) of the standards (9 C.F.R. ss 3.1(c), .25(c), .125(c) (1989)) by failing to store supplies of food and bedding so as to adequately protect them against infestation or contamination by vermin;

   (c) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.2(d) of the standards (9 C.F.R. s 3.2(d) (1989)) by failing to construct and maintain interior surfaces of indoor housing facilities for dogs so that they were substantially impervious to moisture and could be readily sanitized;

   (d) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.78(a) and 3.125(a) of the standards (9 C.F.R. ss 3.78(a), .125(a) (1989)) by failing to provide and maintain primary enclosures in good repair so as to protect the animals from injury and to contain them;

   (e) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.4(b)(2) and 3.128 of the standards (9 C.F.R. ss 3.4(b)(2), .128 (1989)) by failing to provide primary enclosures with sufficient space for dogs, cats, and lions;

   (f) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.5, 3.6, 3.54, and 3.55 of the standards (9 C.F.R. ss 3.5, .6, .54, .55 (1989)) by failing to provide food and water receptacles which were durable and in good condition so that they could be cleaned and sanitized;

   (g) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.7(c), and 3.131(c) of the standards (9 C.F.R. ss 3.7(c), .131(c) (1989)) by failing to keep the premises in good repair so as to facilitate the required animal husbandry practices;

   (h) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.58 of the standards (9 C.F.R. s 3.58 (1989)) by keeping a rabbit in the same primary enclosure as another species;

   (i) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.7(d) and 3.131(d) of the standards (9 C.F.R. ss 3.7(d), .131(d) (1989)) by failing to establish an effective program for the control of pests*1058 (rodents);

   (j) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.134(b) of the standards (9 C.F.R. s 3.134(b) (1989)) by failing to obtain veterinary attention for an injured lion;

    **7 (k) Section 2.50(b) of the regulations (9 C.F.R. s 2.50(b) (1989)) by failing to individually identify cats; and

   (l) Section 2.75(a)(1) of the regulations (9 C.F.R. s 2.75(a)(1) (1989)) by failing to maintain complete records showing the acquisition and disposition of all cats.

   4. The APHIS inspection of June 1, 1989, establishes that Respondent wilfully violated:

   (a) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.2(d) of the standards (9 C.F.R. s 3.2(d) (1989)) by failing to construct and maintain interior surfaces of indoor housing facilities so that they were substantially impervious to moisture and could be readily sanitized;

   (b) Section 2.100(a) of regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.28(a) and 3.78(a) of the standards (9 C.F.R. ss 3.28(a), .78(a) (1989)) by failing to provide primary enclosures which were structurally sound and maintained in good repair so as to protect the animals from injury and to contain them;

   (c) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.128 of the standards (9 C.F.R. s 3.128 (1989)) by failing to provide a primary enclosure with sufficient space for lions;

   (d) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.5, 3.6 and 3.55 of the standards (9 C.F.R. ss 3.5, .6, .55 (1989)) by failing to provide food and water receptacles which were durable and in good condition so that they could be cleaned and sanitized;

   (e) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.7(c) and 3.131(c) of the standards (9 C.F.R. ss 3.7(c), .131(c) (1989)) by failing to keep the premises in good repair so as to facilitate the required animal husbandry practices;

   (f) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.58 of the standards (9 C.F.R. s 3.58 (1989)) by keeping a rabbit in the same primary enclosure as another species; and

   (g) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.134(b) of the standards (9 C.F.R. s 3.134(b) (1989)) by failing to obtain veterinary attention for an injured lion.

   5. The APHIS inspection of July 18, 1989, establishes that Respondent wilfully violated:

    *1059 (a) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.125(a) of the standards (9 C.F.R. s 3.125(a) (1989)) by failing to construct a facility which was structurally sound and appropriate for the animals involved (a bear, cougar, and lions), in that it lacked a perimeter fence to contain the animals, and to restrict the entrance of other animals;

   (b) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.1(c) and 3.125(c) of the standards (9 C.F.R. ss 3.1(c), .125(c) (1989)) by failing to store supplies of food and bedding for animals so as to adequately protect them against infestation or contamination by vermin;

   (c) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.2(d), 3.51(d) and 3.76(d) of the standards (9 C.F.R. ss 3.2(d), .51(d), .76(d) (1989)) by failing to construct and maintain interior surfaces of indoor housing facilities for animals so that they were substantially impervious to moisture and could be readily sanitized;

    **8 (d) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.4(b)(2), 3.4(b)(3) and 3.128 of the standards (9 C.F.R. ss 3.4(b)(2), .4(b)(3), .128 (1989)) by failing to provide primary enclosures with sufficient space for dogs, cats, and lions;

   (e) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.5, 3.6, 3.54 and 3.55 of the standards (9 C.F.R. ss 3.5, .6, .54, .55 (1989)) by failing to provide food and water receptacles which were durable and in good condition so that they could be cleaned and sanitized;

   (f) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.56 and 3.131 of the standards (9 C.F.R. ss 3.56, .131 (1989)) by failing to keep primary enclosures clean and sanitized;

   (g) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.81 and 3.131 of the standards (9 C.F.R. ss 3.81, .131 (1989)) by failing to keep the premises clean and in good repair and free of accumulations of trash;

   (h) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.7(d) and 3.131(d) of the standards (9 C.F.R. ss 3.7(d), .131(d) (1989)) by failing to establish an effective program for the control of pests (rodents);

   (i) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and sections 3.10(a), 3.34(a), 3.59(a), 3.84(a) and 3.134(a) of the standards (9 C.F.R. ss 3.10(a), .34(a), .59(a), .84(a), .134(a) (1989)) by failing to establish and maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine;

    *1060 (j) Section 2.100(a) of the regulations (9 C.F.R. s 2.100(a) (1989)) and section 3.134(b) of the standards (9 C.F.R. s 3.134(b) (1989)) by failing to obtain veterinary attention for an injured lion; and

   (k) Section 2.75(a)(1) of the regulations (9 C.F.R. s 2.75(a)(1) (1989)) by failing to maintain complete records showing the acquisition and disposition of all cats.

   6. It is appropriate to enter the sanctions requested by Complainant.

 

Discussion

 

   At the outset, it must be determined whether Complainant's position is correct, that the regulations and standards in effect as of January 1, 1985, and continuing in effect until after the violations occurred on May 13, June 1, and July 18, 1989, are the correct regulations and standards against which to measure Respondent's conduct, or whether the ALJ's position is correct, that "the Secretary's regulations [and standards] as announced at 54 Fed. Reg. 36112- 36163 (Aug. 31, 1989) as they became effective on October 30, 1989 [after the violations occurred], are those by which Respondent's conduct is to be judged" (Initial Decision at 19). As a result of his view as to the proper regulations to be applied, the ALJ found that there were no violations of the following standards, which are set forth below as they appear in his Finding of Fact No. 7, supra, without my modifications (Initial Decision at 11 13):

 

Regulation or   Complaint                                                      

  Standard                                                                     

  Alleged to                                                                   

  be Violated                                                                  

(All 9 C.F.R.)  Paragraph  [Proof]                                             

--------------  ---------  ----------------------------------------------------

3.10(a)          V, A, 9   This standard is not found in those effectiveOctober

                             30, 1989.                                         

3.34(a)         V, A, 9    This standard is not found in those effectiveOctober

                             30, 1989.                                         

3.59(a)         V, A, 9    This standard is not found in those effectiveOctober

                             30, 1989.                                         

3.84(a)         V, A, 9    This standard is not found in those effectiveOctober

                             30, 1989.                                         

3.134(a)        V, A, 9    This standard is not found in those effectiveOctober

                             30, 1989.                                         

3.134(b)        III, A, 9  (The 2nd so numbered)                               

                IV, G      This standard is not found in                       

                V, A, 10    those effective October 30, 1989.                  

 

    **9 *1061 This issue is of small moment in this case, since the only change in the Order under Complainant's position is to add paragraph (m), relating to adequate veterinary care, to the cease and desist provisions of the Order. However, the issue is of major importance in the field of administrative law. By applying the October 30, 1989, regulations and standards to Respondent's prior conduct, the ALJ is not taking the position that conduct lawful when engaged in became unlawful under the October 30, 1989, regulations. Rather, *1062 the ALJ holds that a cease and desist order cannot be issued as to conduct that was prohibited when it was engaged in if, by the time the Complaint is issued, the amended regulations or standards no longer include the prohibitions previously in effect. I disagree with the ALJ's view that the foregoing standards did not continue in effect on October 30, 1989. Moreover, even if the ALJ's view were correct, that would not preclude the issuance of a cease and desist order for violations committed while the standards were in effect.

   First, the standards which the ALJ held were not in effect in the amended regulations effective October 30, 1989, relate to the requirements for veterinary care for dogs and cats, guinea pigs and hamsters, rabbits, nonhuman primates, and "other animals," respectively (9 C.F.R. ss 3.10(a), .34(a), .59(a), .84(a), .134(a), .134(b)). However, these requirements continued in effect on October 30, 1989. In the 1989 AWA rulemaking, these requirements were consolidated into section 2.33 (for research facilities) and section 2.40 (for dealers and exhibitors) of the regulations (9 C.F.R. ss 2.33, .40 (1990)). The Supplementary Information to the rule ex- plained (54 Fed. Reg. 36,123, 36,137 (1989)):

   Because we are consolidating the requirements to provide vide veterinary care to all regulated animals in this section, we are removing the requirements for providing veterinary care set forth in 9 CFR part 3 of the regulations.

   Hence the ALJ erred in believing that the veterinary-care regulations and standards were no longer in effect when the Complaint was issued.

   Furthermore, even if the veterinary-care regulations and standards had not continued in effect in the October 30, 1989, amendatory rulemaking, a cease and desist order would still be appropriate for violations of the regulations and standards in effect at the time of the violations. Generally, a prohibition that is in effect at the time of an alleged violation is controlling, rather than a prohibition that becomes effective prior to the commencement of the regulator's enforcement action. First National Bank of Bellaire v. Comptroller of the Currency, 697 F.2d 674, 682 83 (5th Cir. 1983). In Bellaire, the petitioner bank made a residential mortgage loan of $48,000, in excess of the then-current statutory limit ($30,000), to one of its officers on February 22, 1979. On March 10, 1979, an amendment to the statute raised the limit to $60,000. The court held (Bellaire, supra, 697 F.2d at 683):

    **10 *1063 Even though a subsequent amendment to a statute may correct a violation the amendment does not annul the violation which has already occurred. In this case, therefore, even though the amendment corrected the violation of 12 U.S.C. s 375a and the Wolf loan is now lawful, the limits of 12 U.S.C. s 375a were still violated. The Comptroller, consequently, was properly acting within his discretion in issuing a Cease and Desist Order requiring the Bank to implement adequate policies and procedures to insure that 12 U.S.C. s 375a is not violated in the future. (Footnote omitted.)

   The Initial Decision's reference to Bellaire states that "an examination of this case reveals that loans by commercial banks to their officers were prohibited by both the original statute and the amendment which merely modified the exceptions to the behavior" (Initial Decision at 19). However, it is inaccurate to characterize the effect of the amendment to 12 U.S.C. s 375a, which occurred on March 10, 1979, as a mere modification of "the exceptions to the behavior." The amendment changed the level above which a residential mortgage loan to a bank officer was illegal. Had the Wolf loan been made 3 weeks later, it would not have been in violation of 12 U.S.C. s 375a. The court found that, notwithstanding the subsequent amendment of the statute, a chargeable violation of law had occurred, and that the violation merited a legal sanction in the form of a cease and desist order prohibiting the bank from violating 12 U.S.C. s 375a at its currently effective, higher levels. Bellaire, supra, 697 F.2d at 683. The court felt it would have been inappropriate for the Comptroller to call in the illegal loan because the "violation here was corrected by the amendment." Id. at n. 11. Judge Tate, in dissent, opined that it would have been well within the Comptroller's remedial authority to call in an illegally-made loan even though the loan would have been legal if it had been made only 3 weeks later. Id. at 692. [FN5]

   For the foregoing reasons, I am adding paragraph (m), relating to adequate veterinary care, to the cease and desist portion of the Order. Parenthetically, I note that in connection with his discussion as to the applicability of the October 30, 1989, regulations, the ALJ discusses the Secretary's action under the Cattle Contagious Diseases Act of 1903 and the Plant Quarantine Act of 1912 (Initial Decision at 16 17), citing In re Harris, *1064 50 Agric. Dec. 683 (1991) (Ruling on Certified Questions), and some of the cases discussed therein. Although this discussion is irrelevant to the present case, I am attaching as an Appendix my Ruling on Certified Questions in Harris, in the event a reviewing court has any interest in the ALJ's discussion of these matters.

   Turning to the next point, the ALJ dismissed several of the Complainant's alleged violations because the Complaint did not identify the subsections of the standards or regulations that were violated (Initial Decision at 9 14, 24). The ALJ's Finding of Fact No. 7, without my modifications, separates 12 alleged violations based upon seven specific standards or regulations, as follows (Initial Decision at 9 13):

    **11 7. The table below relates the proof received into this record to the allegations of violations of the Department's regulations and standards as expressed in the Complaint. Violations are found to exist where proof is cited:

 

Regulation    Complaint                                                        

  or                                                                           

  Standard                                                                     

  Alleged to                                                                   

  be                                                                           

  Violated                                                                     

(All 9        Paragraph       [Proof]                                          

  C.F.R.)                                                                      

------------  --------------  -------------------------------------------------

2.50(b)       III, B, 1       This allegation does not identify which of the   

                                subsections of the regulation may have been    

                                violated.                                      

3.5           III, A, 6       These allegations do not                         

              IV, D           identify which of the                            

              V, A, 5         subsections of the standard may have been        

                                violated.                                      

3.54          III, A, 6       These allegations do not                         

#V, A, 5      identify which                                                   

                of the                                                         

                subsections                                                    

                of the                                                         

                standard may                                                   

                have been                                                      

                violated.                                                      

3.56          V, A, 6         This allegation does not identify which of the   

                                subsections of the standard may have been      

                                violated.                                      

3.58          III, A, 8       These allegations do not                         

              IV, F           identify which of the subsections of the standard

                                may have been violated.                        

3.81          V, A, 7         This allegation does not identify which of the   

                                subsections of the standard may have been      

                                violated.                                      

3.131         V, A, 6         These allegations do not                         

              V, A, 7         identify which of the subsections of the standard

                                may have been violated.                        

 

    *1066 However, it is well settled that the formalities of court pleading are not applicable in administrative proceedings. Wallace Corp. v. NLRB, 323 U.S. 248, 253 (1944); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 142 44 (1940). I have consistently held that technical errors are not fatal to the Complaint in an administrative proceeding before the USDA, as long as the litigant is reasonably apprised of the issues. In re Petty, 43 Agric. Dec. 1406 (1984), aff'd, No. 3 84 2200 R (N.D. Tex. June 5, 1986). Due process is satisfied when the litigant is reasonably apprised of the issues in controversy. In re Collins, 46 Agric. Dec. 217, 233 & n.8 (1987). It is only necessary that the Complaint in an administrative proceeding reasonably apprise the litigant of the issues in controversy; any such notice is adequate and satisfies due process in the absence of a showing that some party was misled. [FN6]

   In the present case, the Complaint advised Respondent of the exact matters at issue, and there is no basis for dismissing any allegations of the Complaint merely because they failed to specify the subsections of the regulations or standards involved in some of the alleged violations.

   Respondent contends, in effect, that the evidence does not adequately support the ALJ's findings of fact, but there is more than a preponderance of the evidence to support the ALJ's findings, as well as my additional findings, *1067 which is all that is required. [FN7]

   Respondent further contends that the violations were not willful. The Administrative Procedure Act provides (5 U.S.C. s 558(c)):

   Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given--

    **12 (1) notice by the agency in writing of the facts or conduct which may warrant the action; and

   (2) opportunity to demonstrate or achieve compliance with all lawful requirements.

   In this matter, Respondent was warned in December of 1988 (CX 6) that compliance had not been achieved with the Department's regulations at 9 C.F.R. s 2.50 (relating to identification of cats) and 9 C.F.R. s 2.100 (relating to compliance with all of the standards in 9 C.F.R. Part 3). Hence Respondent was warned in December of 1988 as to all of the violations except violations of 9 C.F.R. s 2.75(a)(1) (relating to keeping of records as to animals entering and leaving inventory). The warning expressly advised Respondent that further violations may result in severe sanctions (CX 6). Hence a showing of wilfulness is required only as to 9 C.F.R. s 2.75(a)(1). In any event, however, the record shows that all of Respondent's violations were willful. "[I]f a person 1) intentionally does an Act which is prohibited,--irrespective of evil motive or reliance on erroneous advice, or 2) acts with careless disregard of statutory requirements, the violation is wilful." [FN8]

    *1068 Respondent's continuous failure to comply with the Department's regulations and standards is a display of wilfulness.

   Dr. Thomas Gomez, D.V.M., described Respondent's willingness to correct violations, but his failure to prevent continually recurring violations, as follows (Tr. 146 47):

   Q. When you was ever at Pet Paradise did you ever have any problem with having things corrected? Was there a willingness to work with you, work with U.S.D.A., or did you feel that you was dealing with somebody that was not willing to work and was ignoring what you was doing?

   A. Well, the deficiencies cited, you were more than willing to work with anything we cited or recommendations along that same line. However, just by looking at past inspection reports we're having continuous problems or recurrence in the same categories. If it's not sanitation in the rabbits, the next time it's sanitation in the ferrets; if it's protruding wiring in one species, then it's the next. That should never be the case. It should be a matter of going into a facility and being able to catch things that are going to be part of the normal operation as far as fecal accumulation and such. But as far as protruding wires, those were cited numerous times where it should be not even something that I have to be concerned about, or another inspector, it should be automatic. So, again, the willingness I don't think was a problem. It was basic chronic noncompliance due to continuing and recurring deficiencies.

   Dr. Gomez concluded (Tr. 162 63):

   Q. Dr. Gomez, based on your fourteen or so inspections of Pet Paradise how would you characterize the overall operation and *1069 condition of the facility?

   A. As far as -- And I had mentioned in earlier testimony, the problem again is not an unwillingness to correct; it more or less comes down to a matter of not wanting -- no, it's not wanting, but not willing to maintain compliance with the regulations. Based on that the facility is chronically in noncompliance, and it's hard to evaluate and say what -- or how good the facility is by having continuing recurring deficiencies because we're in a constant state of change. As I mentioned previously, during the initial stage it was remodeling; each time I went back out it was a brand new facility as far as something that was here is no longer here. So to say what the facility can become, I don't know; I saw a different facility each time, and each time that I went out there we had noncompliance with the standards.

    **13 Finding #7 provides the specifics of the violations of the standards and the violations of the regulations existing in this matter. Similar violations are found to affect different species. For example, good housekeeping was not displayed in dog cages, a violation of 9 C.F.R. s 3.7(c) as alleged at paragraph III, A, 7 of the Complaint, nor was such displayed in enclosures for prairie dogs, a ferret, a fox and a bear, a violation of 9 C.F.R. s 3.131(c), as alleged at paragraph III, A, 7 of the Complaint. These housekeeping deficiencies were found by the inspector to exist on May 13, 1989 (CX 3), on June 1, 1989 (CX 4), and on July 18, 1989 (CX 5), and hence, may be characterized as persistent, willful violations.

   Respondent contends that the violations cited by the APHIS inspector should not be considered willful violations of the standards because Respondent corrected said violations within the time period set by the inspector. Unfortunately, Respondent has used the very important legal term "wilfulness" (contained in the APA (5 U.S.C. s 558(c)) interchangeably with the word "willingness." (See Respondent's Appeal, pp. 5 6 (Jan. 8, 1992)). Respondent's good faith in correcting deficiencies--willingness to make corrections--does not negate wilfulness in repeatedly failing to comply with the express requirements of the regulations and standards.

   Respondent specifically argues that the Federal Register (no citation) sets forth a time frame for correcting any violations cited by the inspector. Respondent believes that it has two chances to correct deficiencies previously cited by the inspector, which procedure Respondent argues was told to *1070 Respondent's owner by the initial inspector and is written in the Federal Register (Respondent's Appeal at 3 4).

   However, Respondent's argument confuses the inspection procedures for a preliminary inspection with the inspection procedures for a licensed facility. As Complainant correctly points out, the subsequent correction of a condition not in compliance with the standards has no bearing on the existence of a violation, as follows (Complainant's Response to Respondent's Appeal at 4 (Jan. 30, 1992) (emphasis added)):

   The Respondent claims that the regulations issued under the AWA afford a facility that APHIS finds not to be in compliance with the standards "two chances on following inspections to correct deficiencies cited." (R. App. at 3). Its subsequent correction of the deficiencies, it claims, ". . . thus satisf[ies] corrective procedure in accord with AWA." (Id. at 4). The Respondent mistakes the inspection procedures for a prelicensing inspection (9 C.F.R. s 2.3 (1991)) with the inspection procedure for a licensed facility. When an applicant for a license requests a prelicensing inspection, APHIS will conduct three prelicensing inspections before the applicant forfeits the application fee and cannot reapply for a license for six months following the third inspection. 9 C.F.R. s 2.3(b) (1991). During prelicensing inspections, APHIS will advise the applicant of existing deficiencies and the corrective measures that the applicant must complete to come into compliance with the regulations and standards. After the applicant demonstrates such compliance at a follow-up inspection, APHIS will issue a license. However, once an applicant obtains a license, section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) places an affirmative duty on each dealer, exhibitor, operator of an auction sale, and intermediate handler always to be in compliance in all respects with the regulations in 9 C.F.R. Part 2 and the standards in 9 C.F.R. Part 3. This duty exists regardless of a "correction date" suggested by the APHIS inspector who notes the existence of a violation.

    **14 Respondent's repeated and continuous failures to comply with the regulations and standards despite a warning notice and inspector's notices of deficiencies constitute willful conduct, as that term is used in the APA.

   We turn now to the issue as to what sanction should be imposed for *1071 Respondent's violations. Congress, in 1985, authorized [FN9] the imposition of civil penalties not exceeding $2,500 for each day of each violation, further authorized the imposition of cease and desist orders, and, additionally, authorized the suspension or revocation of licenses. [FN10] Prior to the entry of the Order herein, consideration must be given to the following statutory mandate (7 U.S.C. s 2149(b) (1988)):

   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.

   To these four criteria, the Judicial Officer once added a fifth, i.e., a requirement that consideration be given to Respondents' ability to pay civil penalties, but that has since been removed as a criterion, since the AWA, unlike some other statutes, does not require it. [FN11]

   When the size of Respondent's business is examined, it is revealed that 84 animals were on hand during the May 13, 1989, inspection: 11 dogs, 21 cats, 4 primates, 2 guinea pigs, 5 rabbits, 7 prairie dogs, 12 rodent species, 4 ferrets, 3 foxes, 1 bear, 2 lions, 1 cougar, 6 pygmy goats, 2 raccoons, 1 woodchuck, 1 opossum, and 1 Vietnamese pot-bellied pig (CX 3). Additionally, the record shows totals of 114 animals on hand on June 1, 1989 (CX 4), and 78 on July 18, 1989 (CX 5). Even though Respondent argues that gross sales for 1989 were only $11,468, I do not find this persuasive on the issue of size. The regulations require licensing of dealers who gross in excess of $500 annually, placing Respondent beyond small dealers who nonetheless are covered by the Act, and must comply with the regulations. Moreover, the complexity of a facility to house these many, varied and somewhat- exotic animals must be taken into consideration, making it difficult to see how such an operation could be considered small. Thus, I conclude that Respondent operated a moderate-sized facility, and certainly one where the civil penalty in question *1072 would not be inappropriate.

   Turning to gravity of violations, there is substantial evidence in the record to find that Respondent's violations were grave. USDA Inspector Dr. Gomez found Respondent "chronically in noncompliance" (Tr. 162). Dr. Gomez had inspected Respondent's facility 14 times, and obviously knew it well (Tr. 160). And, while some corrections were made after each inspection, more deficiencies appeared each time to take their place.

   Moreover, one animal did not receive proper veterinary care for many weeks, even when suffering open lesions. The record shows that Dr. Gomez cited one lion with an open sore that was not treated, even though it was written up three times on three successive inspection forms, VS Form 18 8, over a 2- month period, as follows:

    **15 (REINSPECTION 5 13 89 pages 2, 5 of 7) (CX 3)

   DEFICIENCIES NOTED THIS INSPECTION (5 13 89)

   # 40 Veterinary Care 3.134

   -1 lion with a sore evident on posterior aspect of [Right Rear] hock.

   -This should be evaluated by attending Veterinarian.

   -To be corrected by 5 19 89.

   (REINSPECTION 6 1 89 pages 2, 3 of 4) (CX 4)

   DEFICIENCIES NOT CORRECTED FROM PREVIOUS INSPECTION (5 13 89) CONTINUED DEFICIENCY

   # 40 Veterinary Care 3.134

   -Lion with sore evident on posterior aspect of [Right Rear] hock has not been evaluated by attending DVM.

   (REINSPECTION 7 18 89 pages 2, 4 of 5) (CX 5)

    *1073 IV. Noncompliance standards documented on inspection (5 13 89) that are not corrected this inspection (7 18 89).

   40

   Veterinary Care (Sec. 3.134)

   - Lion with sore evident on posterior aspect of [Right Rear] hock has not been evaluated by attending DVM.

   III.

   Non-compliance Standards newly identified on this inspection (7 18 89)

   # 40 Veterinary Care (Sec. 3.1, 3.84, 3.34, 3.59, 3.134) Owner states that he is unable to get veterinarian to come out to premise. Adequate Veterinary care shall be maintained under the supervision-- assistance of a doctor of Veterinary Medicine. Update Veterinary care agreement. Correct by 7 25 89.

   Dr. Gomez testified that the lesion could have been due to roughhouse with a companion lion--as maintained by Respondent--but was more likely a decubital ulcer, or an abrasion akin to a "bed sore." Such a condition, if not treated, can instigate septic arthritis, a bacterial infection of the joint, Dr. Gomez testified (Tr. 48 50, 161 62).

   This unconscionable lack of care for a suffering animal is enough in itself to fulfill the requirements for gravity of violations. However, add to that the chronic noncompliance in all the other areas detailed in the Complaint and listed by the ALJ, and there is no doubt that the criterion of section 19(b) of the AWA, concerning gravity of violations, is met here for the civil penalty sanction imposed. For example, Thomas Gomez, D.V.M., testified that Respondent's violations compromised the bio-security of the facility, which presented a number of different animal species for sale in commerce, as follows (Tr. 19 20):

    *1074 Q. Let me back up just for a minute, Doctor. Can you explain why in a pet store environment when there are lots of different animals around are there any special precautions that should be taken that perhaps ordinary cat or dog owner would not necessarily have to take?

   A. In this environment with a variety of different species you have to be extremely careful as far as biosecurity which is basically the cleaning and housekeeping and storage of various items essentially because you have some species that have or carry as a normal part of there bacterial flora organisms that may be not harmful to them but would be harmful to a species adjacent to them. So as far as every aspect of the Animal Welfare Act from cleaning, to ventilation, to sanitation, to food storage the potential for cross-contamination is amplified when you have a variety of species housed in the same room.

    **16 As stated by the ALJ (Initial Decision at 22 23):

   These violations frustrate two of the reasons for the existence of the Animal Welfare Act. These reasons were expressed as follows:

   The purposes of this bill, as amended, are (1) to protect the owners of dogs and cats from theft of such pets, . . . and (3) to establish humane standards for the treatment of dogs, cats and certain other animals. . . . (S. REP. No. 1281, 89 Cong., 2d Sess., reprinted in 1966 U.S. CODE CONG. & ADMIN. NEWS 2635).

   In order to achieve these purposes, the Department of Agriculture, through the Secretary, was authorized by 7 U.S.C.A. ss 2143, 2151 to issue rules, regulations and standards. Among the Department's regulations and standards issued pursuant to these authorizations are those which Respondent violated. The record keeping regulation, 9 C.F.R. s 2.75(a)(1), is intended to permit inspectors to reduce trading in animals that may have been purloined property. Therefore, records must be maintained on the dealers' inventories, and audits must verify the accuracy of the records. When records are incomplete as displayed here at CX 3 and at CX 5, for *1075 example, violations exist. Further, compliance with the regulation at 9 C.F.R. s 100(a) and all of the standards must be obtained. Animals must be maintained in climates and environments conducive to the continuance of their health. It is for this reason that they must be presented with uncontaminated water and feed. They must not be kept where diseases incubate. They must be given space for exercise and dry bedding for rest. See Mary Bradshaw, AWA Docket No. 90-22, 5 [0] Agric. Dec. [499] (May 17, 1991); Lloyd A. Good, Jr., AWA Docket No. 88-17, [49] Agric. Dec. [156] (June 22, 1990); Gus White III, et al., AWA Docket No. 425, [49] Agric. Dec. [123] (February 8, 1990); E. Lee Cox, et al., AWA Docket No. 434, [49] Agric. Dec. [115] (January 29, 1990) [, aff'd, 925 F.2d 1102 (8th Cir. 1991), reprinted in 50 Agric. Dec. 14 (1991), cert. denied, 112 S.Ct. 178 (1991)]. Failing these standards, Respondent must face the imposition of sanctions.

   Concerning the "good faith" criterion, my observation is that Respondent has turned good faith inside out. It is obvious that Respondent has used the Inspection Program to monitor his facility for him. By adopting the position that Respondent has two attempts to comply by remedying cited defects, Respondent essentially has made the USDA inspector its personal compliance supervisor, who tells Respondent what to do to comply.

   The Respondent would not have to maintain, therefore, the entire facility up to standards, or have to monitor compliance (once achieved) but, rather, could just wait and fix whatever it is told is deficient or broken by its de facto "personal" compliance monitor. The Compliance Program does not operate like this.

   Moreover, I do not infer that Respondent's owner actually thought that the pre-licensing regulatory structure obtained for licensed facilities. USDA Inspectors had been there 14 times; it is just not credible that Respondent's owner repeatedly and consistently missed the point of the USDA Inspectors' directives to remedy the defects. In any event, such a mistaken belief would not absolve Respondent. I find that Respondent did not exhibit good faith, but, rather, abused the inspection system to do the absolute minimum to get by the regulations and standards.

    **17 Respondent's complaint about having different inspectors at different times has no merit. Dr. Gomez was the inspector in two of the three pertinent inspections. But, even if there were three separate inspectors, it would not change the outcome, because, by Respondent's own admission, Respondent's owner thought he had two return visits to get defects remedied. *1076 The problem was not that the citations were unfair, wrong, or different; the problem was that Respondent allowed deficiencies to occur, and then took inordinate time to remedy them. To blame noncompliance on having different inspectors with different demands is not credible, because Respondent's owner's admitted attitude was to address problems after the fact, not to be in compliance before the inspector arrived.

   The criterion for consideration of Respondent's history of previous violations does not just pertain to adjudicated violations. Violations occurred at the facility in 1988, and Respondent was given a warning letter. This record shows that additional violations occurred throughout 1989. In total, Respondent was cited for over 60 violations over these three inspections. I find that consideration of previous violations does not support mitigation of the civil penalty.

   In fact, a civil penalty of $5,000 is very moderate for these violations; the number and gravity of which would support a much larger civil penalty. The Act authorizes up to $2,500 per violation per day, which, multiplied by 61 violations, would amount to $152,500. "Each violation and each day during which a violation continues shall be a separate offense" (7 U.S.C. s 2149(b) (1988)).

   Therefore, after considering the criteria required by the statute (7 U.S.C. s 2149(b) (1988)), with respect to the imposition of a civil penalty, I find that these criteria applied to the record do not mitigate in Respondent's favor. Rather, the civil penalty is appropriate to the facts herein.

   Respondent also argues inability to pay civil penalties (Respondent's Appeal at 9). Under some of the USDA-administered statutes which impose civil penalties, Congress has made penury a consideration; however, the Animal Welfare Act is not one of them (see In re Johnson, 51 Agric. Dec. ___, slip op. at 11 (June 3, 1992)), as follows:

   Ability to pay is a relevant circumstance under a number of the civil penalty provisions administered by this Department, e.g., 15 U.S.C. s 1825(b)(1); see also 7 U.S.C. ss 193(b), 213(b), but since that statutory factor is not specified in the Animal Welfare Act, it will not be considered in determining future civil penalties under the Animal Welfare Act.

   At several places in Respondent's Appeal, Respondent argues that the regulations and standards, and even Dr. Gomez's testimony, are interpretive, advisory, or otherwise non legislative. (See Respondent's Appeal, supra, at *1077 4, 7, 10, 12). Respondent claims that this deprives the Department's actions of the force of law. However, Respondent cites cases and uses phraseology which make it apparent that Respondent has lifted this argument out of context from the ALJ's Initial Decision, page 18. In fact, the ALJ determined that the pertinent regulations and standards were properly and correctly promulgated (Initial Decision at 25), as follows:

    **18 It is appropriate to characterize each of the regulations and standards which respondent violated as being the lawful expression of legislation by the Secretary of Agriculture.

   I agree with the ALJ that the pertinent regulations and standards are the lawful expression of legislation by the Secretary.

   Finally, Respondent argues that Pet Paradise, Inc., should not be sanctioned because the license is in his personal name. Respondent is foreclosed on appeal from advancing this argument because of Respondent's admission in its Answer of paragraph I(B) of the Complaint, which alleges that Pet Paradise was a licensed dealer under the Act.

   All of the arguments by Respondent and Complainant have been considered. To the extent that any pleading is inconsistent with the decision herein, even if it was not specifically addressed, it is rejected.

   Complainant has requested that the Order as contained in the Initial Decision be affirmed, but modified. (Complainant's Appeal, supra, at 26). Complainant argues that Respondent repeatedly violated veterinary care standards (9 C.F.R. ss 3.10(a), .34(a), .59(a), .84(a), .134(a), .134(b) (1989)). The record clearly supports this conclusion, and I agree. Therefore, the cease and desist order will be amended to include the language requested by Complainant, as follows (Complainant's Appeal, at 26):

   (m) Having an attending veterinarian who shall provide adequate veterinary care to its animals in compliance with the requirements of 9 C.F.R. s 2.40 (1991) and as such section may subsequently be amended.

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

Order

   1. Respondent, its agents and employees, successors and assigns, directly *1078 or through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards issued thereunder, and in particular, shall cease and desist from operating as a dealer within the meaning of the Act and regulations without:

   (a) Maintaining housing facilities for animals so that they are structurally sound and in good repair, and appropriate for the animals involved, in order to protect the animals from injury and to contain the animals, including maintaining fixed barriers between the animals and the viewing public and maintaining at all times a suitable perimeter fence;

   (b) Storing supplies of food and bedding so they are adequately protected against infestation or contamination by vermin;

   (c) Constructing and maintaining indoor housing facilities for animals so that they are substantially impervious to moisture and can be readily sanitized;

   (d) Maintaining primary enclosures for animals so that they are structurally sound and in good repair in order to protect the animals from injury and to contain the animals;

   (e) Providing enclosures with sufficient space for the animals involved;

   (f) Providing food and water receptacles which are durable and in good condition so that they may be cleaned and sanitized;

    **19 (g) Keeping the premises in good repair so as to facilitate the required animal husbandry practice;

   (h) Keeping rabbits in separate primary enclosures from any other animal species;

   (i) Establishing and maintaining an effective program for the control of pests (rodents);

   (k) Maintaining complete and up-to-date records showing the acquisition and disposition of all cats and dogs;

   (l) Keeping primary enclosures clean, in good repair and free from accumulations of trash; and

   (m) Having an attending veterinarian who shall provide adequate veterinary care to its animals in compliance with the requirements of 9 C.F.R. s 2.40 (1991) and as such section may subsequently be amended.

   2. Respondent is assessed a civil penalty of $5,000. The civil penalty is to be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded to M. Bradley Flynn, U.S. Department of Agriculture, Office of the General Counsel, Room 2014 South Building, Washington, D.C. 20250 1400, within 120 days after service of this Order on *1079 Respondent.

   3. Respondent's license is suspended for a period of 30 days and continuing thereafter until it demonstrates to the Animal and Plant Health Inspection Service that it is in full compliance with the Act and the regulations and standards issued thereunder. When Respondent demonstrates to the Animal and Plant Health Inspection Service that it has satisfied these conditions, a supplemental order will be issued in this proceeding upon the motion of the Animal and Plant Health Inspection Service, terminating the suspension.

Appendix

In re Harris, 50 Agric. Dec. 683 (1991).

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 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).

FN2 5 U.S.C.A. §§ 554, 557 (West 1977 and Supp. 1990) [hereinafter cited as unofficially codified] [brackets in original].

FN3 7 U.S.C.A. §§ 2131-2147, 2149, 2151-2155 (West 1988 and Supp. 1990) [hereinafter cited as unofficially codified] [brackets in original].

FN4 Complainant's Proposed Findings of Fact, Conclusions of Law, and Order, and brief in support thereof, at 34, September 11, 1990. Complaint counsel at page 13 of the filing of September 11, 1990, contradictorily suggests a suspension period of 120 days' duration.

FN5 I do not regard as persuasive the cases relied on by the ALJ in support of his conclusion (Initial Decision at 19).

FN6 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350-51 (1938); Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 261-62 (D.C. Cir. 1979); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1161 (5th Cir. 1977); L.G. Balfour Co. v. FTC, 442 F.2d 1, 19 (7th Cir. 1971); Bruhn's Freezer Meats of Chicago, Inc. v. USDA, 438 F.2d 1332, 1342 (8th Cir. 1971); Swift & Co. v. United States, 393 F.2d 247, 252-53 (7th Cir. 1968); Cella v. United States, 208 F.2d 783, 788-89 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954); American Newspaper Pub. Ass'n v. NLRB, 193 F.2d 782, 799-800 (7th Cir. 1951), cert. denied sub nom. International Typographical Union v. NLRB, 344 U.S. 816 (1952); Mansfield Journal Co. v. FCC, 180 F.2d 28, 36 (D.C. Cir. 1950); E.B. Muller & Co. v. FTC, 142 F.2d 511, 518-19 (6th Cir. 1944); A.E. Staley Mfg. Co. v. FTC, 135 F.2d 453, 454-55 (7th Cir. 1943); NLRB v. Pacific Gas & Elec. Co., 118 F.2d 780, 788 (9th Cir. 1941); In re Sterling Colo. Beef Co., 35 Agric. Dec. 1599, 1601 (1976) (ruling on certified questions), final decision, 39 Agric. Dec. 184 (1980), appeal dismissed, No. 80-1293 (10th Cir. Aug. 11, 1980); In re Holcomb, 35 Agric. Dec. 1165, 1173-74 (1976).

FN7 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).

FN8 Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961). Accord Finer Foods Sales Co. v. Block, 708 F.2d 774, 778 (D.C. Cir. 1983); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 997 (1981); George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.), cert. denied, 419 U.S. 830 (1974); Eastern Produce Co. v. Benson, 278 F.2d 606, 609 (3d Cir. 1960). See also United States v. Illinois Central R.R., 303 U.S. 239 (1938); Mattes v. United States, 721 F.2d 1125, 1129 (7th Cir. 1983); and In re Esposito, 38 Agric. Dec. 613, 663-665 (1979). The term wilfulness has been less stringently defined in Capital Produce Inc. v. United States, 930 F.2d 1077 (4th Cir. 1991); Hutto Stockyard, Inc. v. USDA, 903 F.2d 299 (4th Cir. 1990); and Capitol Packing Co. v. United States, 350 F.2d 67 (10th Cir. 1965).

FN9 The Food Security Act of 1985, Pub. L. No. 99-198, § 1755(a)(1), 99 Stat. 1650 (1985), 7 U.S.C. § 2149(b) (1988).

FN10 7 U.S.C. § 2149(a) (1988).

FN11 In re White, 49 Agric. Dec. 123, 151, 153 54 (1990). In re Johnson, 51 Agric. Dec. ___, slip op. at 11 (June 3, 1992), removed ability to pay as a criterion in AWA cases.

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