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

IN RE: CECIL BROWNING, DELORES BROWNING AND DARREN BROWNING, d/b/a ALLIGATORLAND SAFARI ZOO, INC.
United States
52 Agric. Dec. 129 (1993)


Case Details
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Summary:  

This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. s 2131 et seq.), and the regulations and standards issued thereunder (9 C.F.R. s 1.1 et seq.). On November 20, 1992, Administrative Law Judge Edwin S. Bernstein (ALJ) issued an Initial Decision and Order assessing a civil penalty of $2,000, and suspending Respondents' license for 30 days, and thereafter until they are in full compliance with the Act, regulations and standards, because Respondents failed to keep their primary enclosures sanitary and in suitable condition, failed to maintain complete records, failed to keep food and watering receptacles clean, failed to handle wastes properly, failed to provide adequate veterinarian care, and failed to utilize sufficient personnel to maintain proper husbandry practices. (Respondents were licensed exhibitors of captive wildlife, including deer, non-human primates, and bears, among other animals.) The court also found the sanctions were not too severe, considering the willfullness of the violations.



Judge Initial decision issued by Edwin S. Bernstein, 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 and standards issued thereunder (9 C.F.R. s 1.1 et seq.). On November 20, 1992, Administrative Law Judge Edwin S. Bernstein (ALJ) issued an Initial Decision and Order assessing a civil penalty of $2,000, and suspending Respondents' license for 30 days, and thereafter until they are in full compliance with the Act, regulations and standards, because Respondents failed to keep their primary enclosures sanitary and in suitable condition, failed to maintain complete records, failed to keep food and watering receptacles clean, failed to handle wastes properly, failed to provide adequate veterinarian care, and failed to utilize sufficient personnel to maintain proper husbandry practices.

On December 23, 1992, Respondents appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the *130 Department's cases subject to 5 U.S.C. ss 556 and 557 (7 C.F.R. s 2.35). [FNA1] The case was referred to the Judicial Officer for decision on January 6, 1993.

Oral argument before the Judicial Officer, which is discretionary (7 C.F.R. s 1.145(d)), was requested by Respondents, but is denied inasmuch as the issues on appeal have been thoroughly briefed and oral argument would seem to serve no useful purpose.

**2 Based upon a careful consideration of the record, the Initial Decision and Order is adopted as the final Decision and Order, with a few trivial editorial changes not specified. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION

This is a disciplinary proceeding under the provisions of the Animal Welfare Act ("Act"), as amended (7 U.S.C. s 2131 et seq.), the regulations and standards ("Regulations") issued pursuant to the Act (9 C.F.R. s 1.1 et seq.) and the Rules of Practice Governing Formal Adjudicatory Administrative Proceedings Instituted by the Secretary (7 C.F.R. ss 1.130-1.151, "The Rules of Practice").

The proceeding was instituted by a Complaint filed on August 13, 1991, [FN1] by the Administrator of the Animal and Plant Health Inspection Service ("APHIS"), United States Department of Agriculture ("USDA"). The Complaint alleged that Cecil Browning, Delores Browning and Darren Browning ("Respondents") *131 wilfully violated the Act and the Regulations by failing to maintain records and to provide appropriate animal care and facilities as required under the Act. Following unsuccessful settlement negotiations, Respondents filed a timely Answer on December 19, 1991, in which they admitted facts supporting some of the allegations made in the Complaint (See infra), and denied the other material allegations of the Complaint.

I presided over a hearing on August 20, 1992, in Orlando, Florida. Complainant was represented by Frank Martin, Esq., Office of the General Counsel, United States Department of Agriculture, Washington, D.C. Respondents appeared pro se. On October 22, 1992, Complainant filed proposed findings of fact, proposed conclusions of law and a brief. Respondents also filed their brief on that date. All proposed findings, proposed conclusions, and arguments have been considered. To the extent indicated they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence. References to Complainant's exhibits are designated "CX"; references to Respondents' exhibits are designated "RX"; references to the hearing transcript are designated "Tr."

After considering the evidence and the applicable law, I conclude that Respondents wilfully violated the Act as alleged in the Complaint with the exception of the allegations in paragraph III C. 5. which are dismissed as not supported by the evidence.

Findings of Fact

1. Respondents Cecil Browning, Delores Browning and Darren Browning are individuals doing business under the non-incorporated name of Alligatorland Safari Zoo, Inc. Their business address is Post Office Box 819, Route 192, Kissimmee, Florida 32742.

2. At all times material to this proceeding, Respondents were licensed and operating as an exhibitor as defined in the Act and Regulations, and subject to the provisions thereof. In their license application Respondents agreed to comply with the Regulations. (CX 4; Tr. 427-429)

**3 3. On April 26, 1990, USDA Veterinary Medical Officer, Gerald Dienhart, D.V.M., inspected Respondents' facility. Respondents failed to provide inventory records and records of acquisition and disposition for Dr. Dienhart's inspection, as required under the Act, 7 U.S.C. s 2140, and the Regulations, 9 C.F.R. s 2.75(b)(1) (1990). (CX 3; Tr. 83, 141, 155)

4. Review of inventory records and records of animal acquisition and disposition is an integral component of APHIS' administration of the Animal *132 Welfare Act. (Tr. 142)

5. Dr. Dienhart discussed the significance of the records requirement and the type of information which must be kept available for inspection with Respondent Cecil Browning. (CX 2; Tr. 154) Respondents did not send inventory records to APHIS' Southeast Sector Office in Tampa, Florida, by May 20, 1990, as Dr. Dienhart directed them to do. (CX 2; Tr. 141)

6. The Act and Regulations mandate a written program of veterinary care which includes such information as schedules for vaccinations, tests, worming and examinations of the animals by a veterinarian. (9 C.F.R. s 2.40 (a)(1); Tr. 110-111, 145) The written program of veterinary care is an integral part of the administration of the Act and the Regulations which enables APHIS to evaluate the adequacy of veterinary care at each facility subject to the Act. (Tr. 110-111)

7. On April 26, 1990, Respondents failed to provide an updated written program of veterinary care for Dr. Dienhart's review. (CX 3; Tr. 145) Dr. Dienhart discussed the significance of the veterinary program deficiency and the action required for its correction with Respondent Cecil Browning. (CX 2; Tr. 146) Respondents did not send a copy of an updated veterinary program to APHIS' Southeast Sector Office by May 25, 1990, as Dr. Dienhart directed them to do. (CX 2; Tr. 146)

8. On April 26, 1990, Respondents' facility lacked a perimeter fence at least eight feet high and structurally sound enough to contain Respondents' animals. (CX 3; Tr. 147) APHIS has interpreted the structural strength requirement of the Regulations to include a perimeter fence to prevent intrusions into the facility and to contain wild and dangerous animals, should they escape their primary enclosures. (Tr. 99) The height requirement for perimeter fence is set through agency memoranda which clarify the subparts of the Code of Federal Regulations. (Tr. 63) Lack of adequate perimeter fence had been identified on previous inspections of Respondents' facility. (CX 3; RX 183, 186; Tr. 147, 226-229) USDA investigator Charles Deitz testified that a warning notice was issued to Respondents in 1987 regarding the deficiency. (Tr. 62) Dr. Dienhart discussed the significance of the problem and the necessary correction with Respondent Cecil Browning who argued that the fence was unnecessary. (Tr. 149)

9. On April 26, 1990, there was excessive rust, wooden areas in need of repair or replacement, and protruding sharp wires in various animal enclosures at Respondents' facility. The conditions reported in the inspection report and in Dr. Dienhart's testimony are described below:

**4 (a) There was a rusty feeder and torn up, and rusty boards, with *133 exposed nails in the gibbon enclosure.

(b) The resting stand was rusting and chewed or scratched up, and there was an exposed nail on the supporting post in the cougar enclosure.

(c) There was rusty cage wire, holes in the wire enclosure in need of repair and exposed sharp wire ends in the monkey's primary enclosure.

(d) The cage supports and poles at the chimpanzee enclosure contained rust.

(e) There was a hole in an area of excessive rust in the black jaguar's enclosure.

(f) The binturong resting board was in need of repair or replacement.

(g) There was excessive rust in cage wire and resting boards in need of repair in additional primate enclosures.

(CX 3; Tr. 146-148)

10. Dr. Dienhart discussed the significance of the deficiencies identified in Finding # 9 and the actions required for their correction by May 25, 1990, with Respondent Cecil Browning, who admitted that the exposed wire ends and the surrounding area of rust in the jaguar's cage were in need of correction, and that the exotic felines continuously splinter their wooden surfaces. (CX 3; Tr. 148-149, 212)

11. Respondent Darren Browning admitted during his testimony that his facility contained some rusty cage wire and wooden areas in need of repair at the time of the April 26, 1990, inspection. (Tr. 430- 431)

12. Respondents admitted in their Answer that the structural deficiencies identified in the April 26, 1990, inspection report, were corrected by Respondents with the exception of the deficiencies in the cougar and binturong cages which they contested. (Answer at 1, C. 1.)

13. The following conditions existed at Respondents' facility on April 26, 1990, with regard to the sanitation of watering receptacles:

(a) There was excessive algae in the manmade pond in the enclosure for the white-tailed deer and the capybara where an alternative source of drinking water was required.

(b) Drinking water for the cavies was very dirty and not potable.

(c) The hyena was in need of an alternative source of drinking water other than the bathing water.

(d) The bobcat was in need of an alternative source of drinking water *134 other than the pond in its enclosure.

(e) The lion's metal water receptacle had sharp edges exposed.

(f) The black bear's water receptacle contained excessive rust, and the water was not potable.

(CX 3; Tr. 150, 183-184, 190)

14. Dr. Dienhart discussed the significance of the deficiencies identified in Finding # 13 and the action required for their correction by May 25, 1990, with Respondent Cecil Browning, who admitted that the condition of the lion's container could cause the ingestion of metal. (CX 3; Tr. 151)

15. Respondents admitted in their Answer that there was dirt in the bottom of the cavies' water container on April 26, 1990. (Answer at 1, C. 2)

16. With regard to the cleaning and sanitation of primary enclosures for non-human primates, nest boxes for the rhesus and mandrill were in need of cleaning and sanitation at Respondents' facility on April 26, 1990. (CX 3; Tr. 152-153, 196-197) The nest boxes contained old feces which indicated that they had not been cleaned in several days and posed a health hazard. (CX 3; Tr. 152-153, 197-198)

**5 17. Dr. Dienhart discussed the significance of the deficiencies identified in Finding # 16 and the actions necessary to correct them by May 4, 1990, with Respondent Cecil Browning, who admitted that the nest boxes for the rhesus and mandrill were in need of cleaning. (CX 3; Tr. 153)

18. In their Answer, Respondents admitted that the nest boxes identified in Dr. Dienhart's April 26, 1990, inspection report were not clean. (Answer at 2, C. 3)

19. On July 23, 1990, Dr. Dienhart inspected Respondents' facility, accompanied by Richard Overton, D.V.M., an APHIS Animal Care Specialist, who was Dr. Dienhart's technical supervisor. (Tr. 328-329, 342)

20. Inventory records of Respondents' animals were not available for review on July 23, 1990, and records of acquisition and disposition were incomplete. (CX 2; Tr. 141)

21. On July 23, 1990, no written program of veterinary care was available for review at Respondents' facility and Respondents had not provided an area for the quarantine of contagious animals. (CX 2; Tr. 109-110)

22. Dr. Dienhart discussed the significance of the deficiencies identified in Finding # 21 with Respondent Darren Browning who admitted he had no updated written veterinary program on site. (Tr. 111)

23. The following conditions existed at Respondents' facility on July 23, 1990, with regard to structural strength and general requirements:

*135 (a) There was no perimeter fence eight feet high and sound enough to contain "wild and dangerous" animals.

(b) The inspectors observed areas of excessive rust and wooden surfaces which were splintered and/or no longer impervious to moisture, specifically:

(1) excessive rust in the gibbon feeder in the front cage,

(2) frame rust in the capuchin enclosure,

(3) rusty cage wire in the areas for the tamarin and ringtail cat,

(4) rust on the frame of the night box and support poles in the chimpanzee area,

(5) wood in need of repair or replacement in the front gibbon cage and in the enclosures for the cougar, jaguar, tiger, vervet and mangabey.

(c) Sharp wire ends or exposed nails or bolts were observed in the front gibbon enclosure and the cougar, jaguar, tamarin and ringtail cat enclosures. (CX 2, 8-16, 19, 21; Tr. 112-113, 116-125, 128-131)

24. Dr. Dienhart discussed the significance of the deficiencies identified in Finding # 23 and the actions required for their correction with Respondent Darren Browning, who disagreed that a perimeter fence should be required, but admitted that the sharp wires and exposed nails should be taken care of. (Tr. 114-116)

25. In their Answer, Respondents admitted that on July 23, 1990, there was some rusty wire in the tamarin and ringtail cat cages, rust on the chimpanzee night box, wood in need of repair in the gibbon, jaguar and vervet areas and an exposed nail on the gibbon's platform. (Answer at 2-3, C. 1)

26. Respondent Darren Browning admitted during his testimony that his facility contained some rusty cage wire and wooden areas in need of repair at the time of the July 23, 1990, inspection. (Tr. 430-431)

**6 27. With regard to waste disposal, the following conditions existed at Respondents' facility on July 23, 1990. Spoiled food and feces attracting flies were accumulated on the ground outside the gibbon enclosure in the area adjacent to the pot-bellied pig's enclosure. (CX 2; Tr. 131-133, 232-233)

28. Dienhart discussed the significance of the deficiencies identified in Finding # 27 and the actions necessary to correct them by July 25, 1990, with *136 Respondent Darren Browning, who admitted that the problem required correction. (Tr. 132-133)

29. Respondents admitted in their Answer that there were food and feces on the ground outside the gibbon enclosure on July 23, 1990. (Answer at 3, III, C. 2)

30. The following conditions existed at Respondents' facility on July 23, 1990, with regard to the sanitation of food receptacles for animals. A feeder with excessive rust was observed in the gibbon enclosure and the cavies' food receptacle contained feces. (CX 2; Tr. 134-135)

31. Dr. Dienhart discussed the significance of the deficiencies identified in Finding # 30 and the actions required for their correction by August 22, 1990, with Respondent Darren Browning, who admitted that corrections were needed. (Tr. 135-136)

32. With regard to the sanitation of watering receptacles at Respondents' facility on July 23, 1990, there was dirty water, excessive algae and rusty containers as described below:

(a) Containers in the enclosure for the white- tailed deer and capybara had excessive algae and dirty water.

(b) The receptacle in the cavy enclosure contained dirty water.

(c) No potable water, only bath water was available to the bobcats and one hyena.

(d) The water container in the bear area was rusty.

(CX 2, 17-18, 20; Tr. 126-127, 129-130, 136-137)

33. Dr. Dienhart discussed the significance of the deficiencies identified in Finding # 32 and the actions necessary to correct them with Respondent Darren Browning who admitted that the dirty water container from the white-tailed deer enclosure needed to be replaced and that adjustments to the cavies' receptacle were required. (Tr. 137-138)

34. Respondents admitted in their Answer that there was dirt in the bottom of the cavies' water container on July 27, 1990. (Answer at 5, III C. 4)

35. Respondents admitted in their Answer that the hyena had no source of water which was potable in July 1990. (Answer at 5, III C. 4)

36. With regard to pest control, the following conditions existed at Respondents' facility on July 23, 1990: flies in the area of accumulated wastes outside the gibbon enclosure and a wasp's nest in the colobus enclosure. (Answer at 6, C. 5; CX 2; Tr. 139-140, 237-239)

37. On July 23, 1990, Respondents' facility did not have an adequate *137 number of qualified and trained staff to maintain the prescribed level of husbandry practices. (CX 2; Tr. 141)

38. Dr. Dienhart discussed the significance of the staff inadequacy and the need to correct the problem by August 22, 1990, with Respondent Darren Browning, who admitted that the facility had an insufficient number of employees. (Tr. 141)

**7 39. Dr. Overton concurred in the deficiencies cited by Dr. Dienhart at Respondents' facility on July 23, 1990. (Tr. 329)

40. On March 7, 1991, Dr. Dienhart inspected Respondents' facility, accompanied by Ms. Charmaine Zordan, who is also a USDA animal care inspector. (Tr. 279-280)

41. On March 7, 1991, the following animals at Respondents' facility were in need of veterinary care:

(a) cavies with ear lesions;

(b) a pot-bellied pig with extensive hair loss and thickened areas of inflamed skin;

(c) a lethargic and depressed baboon.

(CX 1; Tr. 106)

The baboon received medical attention from attending veterinarian, Bruce Ramsey, D.V.M., later the same day. The cavies had been treated for ear lesions prior to the inspection. The cavies and pig were examined by the attending veterinarian approximately two weeks following the inspection. (Tr. 383-385) Dr. Ramsey and another veterinarian, Richard Austin, D.V.M., testified that the overall care of Respondents' animals was of good quality. (Tr. 382, 389)

42. On March 7, 1991, the following conditions existed at Respondents' facility with regard to structural strength and general requirements:

(a) Sharp wires were protruding into several primary enclosures.

(b) The door to the lion area was in need of repair.

(c) Some wooden surfaces were no longer substantially impervious to moisture.

(d) Splintered wooden surfaces posing a health hazard were present.

(e) There was excessive rust in some primary enclosures.

(f) The facility lacked an adequate perimeter fence.

(g) There were loose shingles in the white- throated capuchin's enclosure.

*138 (CX 1; Tr. 95-97)

43. Dr. Dienhart discussed the significance of the deficiencies described in Finding # 42 and the actions required to correct them with Respondent Darren Browning, who admitted that the protruding wires were in need of repair, and that some of the splintered wooden surfaces required correction. (Tr. 97-98, 102)

44. Respondents' Answer admitted that the allegations of sharp wires in the cages housing the ringtail lemur and the rhesus macaque, and a door in need of repair at the lion enclosure, were true. (Answer at 8, IV B. 1)

45. With regard to the sanitation of primary enclosures, the following conditions existed at Respondents' facility on March 7, 1991:

(a) wooden surfaces which were not substantially impervious to moisture;

(b) splintered wooden areas;

(c) excessive rust.

(CX 1; Tr. 95)

46. On March 7, 1991, Respondents' facility did not have an adequate number of employees to maintain the prescribed level of husbandry practices. (CX 1; Tr. 103 105)

47. Dr. Dienhart discussed the significance of the staff inadequacy with Respondent Darren Browning who admitted the need for more workers. (Tr. 104- 105)

48. Ms. Zordan concurred in the deficiencies cited in Dr. Dienhart's inspection report for Respondents' facility on March 7, 1991. (Tr. 280-281)

**8 49. At each of the inspections of their facility, Dr. Dienhart discussed the deficiencies cited in the inspection reports with at least one of the Respondents, and made recommendations for their correction. (Tr. 144, 170, 322, 372)

50. Inspection reports, which are official business records of APHIS' animal welfare inspection activity, are prepared by the inspector at or near the time of the observations described in the report. (Tr. 93-94) A copy is given to the licensee as written notification of any deficiencies noted during the inspection. (Tr. 86, 92) Respondents admitted that they received a copy of the report for each of the three inspections of their facility under consideration in this proceeding. (Tr. 430)

51. Despite hostilities between Respondents and Dr. Dienhart, Respondents received a fair and professional inspection on each of the three occasions under consideration in this proceeding. (Tr. 177, 276, 308, 330)

*139 52. Respondents corrected many of the deficient items cited at their facility during the April 26 and July 23, 1990, inspections. (CX 1 and 2)

Conclusions of Law

1. On April 26, 1990, Respondents violated the Act and the Regulations and standards issued pursuant to the Act as follows:

(a) Respondents failed to maintain complete records showing the acquisition, disposition and identification of their animals in violation of the Act, 7 U.S.C. s 2140, and the Regulations, 9 C.F.R. s 2.75 (b)(1) (1990);

(b) Respondents failed to establish and maintain a program of adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine in violation of 9 C.F.R. s 2.40 (1990);

(c) Respondents failed to maintain primary enclosures and housing facilities for nonhuman primates and other animals in good repair, so as to protect the animals from injury and contain them, in violation of 9 C.F.R. ss 3.75(a), 3.78(a) and 3.125(a) (1990);

(d) Respondents failed to maintain proper sanitation of watering receptacles for animals in violation of 9 C.F.R. s 3.130 (1990);

(e) Respondents failed to maintain proper sanitation of primary enclosures for nonhuman primates in violation of 9 C.F.R. ss 3.81(a) (1990).

2. On July 23, 1990, Respondents violated the Act and the Regulations and standards issued pursuant to the Act as follows:

(a) Respondents failed to maintain complete records showing the acquisition, disposition and identification of their animals in violation of the Act, 7 U.S.C. s 2140, and the Regulations, 9 C.F.R. s 2.75 (b)(1) (1990);

(b) Respondents failed to establish and maintain a program of adequate veterinary care under the supervision and assistance of a *140 doctor of veterinary medicine in violation of 9 C.F.R. s 2.40 (1990);

(c) Respondents failed to maintain primary enclosures and housing facilities for nonhuman primates and other animals in good repair, so as to protect the animals from injury and contain them, in violation of 9 C.F.R. ss 3.75(a), 3.78(a) and 3.125(a) (1990);

**9 (d) Respondents failed to provide for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards in violation of 9 C.F.R. s 3.75(d) (1990);

(e) Respondents failed to maintain proper sanitation of food receptacles for animals in violation of 9 C.F.R. ss 3.79(b) and 3.129(b) (1990);

(f) Respondents failed to maintain proper sanitation of watering receptacles for animals in violation of 9 C.F.R. s 3.130 (1990);

(g) Respondents failed to utilize a sufficient number of employees to maintain the prescribed level of husbandry practices in violation of 9 C.F.R. ss 3.82 and 1.32 (1990).

3. On March 7, 1991, Respondents violated the Act and the Regulations and standards as follows:

(a) Respondents failed to provide veterinary care to animals in need of care in violation of 9 C.F.R. s 2.40 (1991);

(b) Respondents failed to maintain primary enclosures and housing facilities for nonhuman primates and other animals in good repair, so as to protect the animals from injury and contain them in violation of 9 C.F.R. ss 3.75(a), 3.78(a) and 3.125(a) (1991);

(c) Respondents failed to maintain proper sanitation of primary enclosures for animals in violation of 9 C.F.R. ss 3.81(b) and 3.131(b) (1991);

(d) Respondents failed to utilize a sufficient number of employees to maintain the prescribed level of husbandry practices in violation of *141 9 C.F.R. ss 3.82 and 1.32 (1991).

4. Respondents' violations were significant and wilful. A wilful violation is defined as one where the violator either intentionally does an act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or acts with careless disregard of statutory requirements. In re Arab Stock Yard, Inc., 37 Agric. Dec. 293, 306 (1978), aff'd sub nom. Arab Stock Yard v. United States, 582 F.2d 39 (5th Cir. 1978).

5. The allegations of paragraph III C. 5 of the Complaint are not supported by substantial evidence and are, accordingly, dismissed.

Discussion

Respondents are the owners and operators of a roadside zoo. As licensed exhibitors under the Animal Welfare Act, they have agreed in their written application to comply with the Act, and the Regulations and standards issued pursuant to the Act. Complainant's evidence of the alleged violations was presented chiefly through the testimony of APHIS animal care inspectors and the written reports of their inspections at Respondents' facility.

I found Complainant's witnesses who inspected Respondents' facility -- Dr. Dienhart, Ms. Zordan and Dr. Overton -- to be sufficiently experienced experts to enable them to properly evaluate Respondents' facility with respect to the alleged violations. I also found them to be reliable witnesses who testified credibly and I am unable to conclude that any of these witnesses evaluated Respondents' facility unfairly as a result of any bias with respect to Respondents. While I am impressed with the enthusiasm that Respondent Darren Browning brought to the presentation of Respondents' case, I find that some of the evidence which he offered was inconsistent or irrelevant. Ultimately, I conclude that Respondents did not rebut the prima facia evidence which Complainant presented with respect to 16 of the 17 alleged violations.

**10 Complainant has carried its burden of proof with regard to the violations of records requirements. The testimony of Drs. Dienhart and Overton and the inspection reports show that during two APHIS inspections, Respondents failed to provide inventory records and adequate records of acquisition and disposal for review by the USDA inspector. These required records enable APHIS to track the transfer of wild and exotic animals within the region. Inventory records, which show births and deaths, are also an important indicator of the level of animal husbandry, basic care and veterinary care provided by exhibitors. (Tr. 142-143) Respondents attempt to explain their failure to produce the *142 necessary records on April 26, 1990, by stating that their record keeper was temporarily absent. The inspection report for April 26, 1990, states that Respondents were directed to mail the proper forms to the APHIS Sector Office by May 20, 1990. Although Respondents allege in their Answer that they mailed the records as requested, Dr. Dienhart's testimony and the subsequent inspection report for July 23, 1990, indicate that Respondents failed to submit the records as directed. Respondents have presented no evidence to the contrary.

Respondents also contend in their Answer, that during the July 23, 1990, inspection Darren Browning handed the inventory, acquisition, and disposition records to Dr. Dienhart. (Answer at 2, III A. & B.) However, I find more credible Dr. Dienhart's testimony and his July 23, 1990, inspection report, in which Dr. Overton concurred, which assert that no inventory records were available for review and that records of acquisition and disposal were inadequate.

With regard to veterinary care, Respondents were twice cited for failure to provide an updated written program of veterinary care for APHIS' evaluation. Dr. Dienhart testified that during the April 26, 1990, inspection he discussed this deficiency with Respondent Cecil Browning and requested that the program be mailed to the APHIS Sector Office by May 25, 1990. The subsequent inspection report for July 23, 1990, in which Dr. Overton concurred, states that Respondents failed to mail in the program as directed, and had no program available for review on July 23, 1990. Although Respondents contend in their Answer that Darren Browning provided the required veterinary records to Dr. Dienhart on July 23, 1990 (Answer at 2, III A. & B.), Darren Browning admitted during that inspection that he had no copy of the program on site. (Tr. 111) Respondent Darren Browning did not deny this admission during his testimony. In addition, Drs. Dienhart and Overton testified that during the July 23, 1990, inspection, Respondents had failed to provide a quarantine area for contagious animals. Clearly, the preponderance of credible evidence supports Complainant's allegations that Respondents violated the Act and the Regulations with regard to the required program of veterinary care on April 26 and July 23, 1990.

**11 The Complaint also alleged that Respondents failed to provide veterinary care to animals in need of care. The March 7, 1991, inspection report and the related testimony of Dr. Dienhart and Ms. Zordan report that several animals, a baboon, cavies and a pot- bellied pig, were in need of medical attention. Respondents admit that the baboon was in need of care and allege that they had arranged to take him to the veterinarian at about the time the USDA inspectors *143 arrived. Respondents contend that although they postponed the appointment until after the inspection was completed, the baboon was treated later the same day. (Answer at 8, IV B. 1; Tr. 425) The attending veterinarian, Bruce Ramsey, D.V.M., confirmed that the baboon was treated as alleged by Respondents and also testified that he had treated the cavies for ear lesions prior to the inspection, although he could not recall the specific date of treatment. (Tr. 383-385) Dr. Ramsey also testified that he examined the cavies and pot-bellied pig two weeks after the inspection, at Respondents' request, and did not observe the pig to have extensive hair loss or inflamed skin as reported by Dr. Dienhart. (Tr. 383)

Although both Dr. Ramsey and Richard Austin, D.V.M., another veterinarian who had attended Respondents' animals over the years, attested to the generally good care they had observed with regard to Respondents' animals (Tr. 382, 389), these witnesses did not prove Respondents' contention (Answer at 7, IV A.) that the cavies were undergoing treatment when they were observed by Drs. Dienhart and Overton. Nor did they rebut the evidence that the cavies and the pig were in need of veterinary care at the time of the inspection, or show that the animals received the needed attention. The preponderance of credible evidence supports this violation as alleged.

Complainant also alleged that Respondents' facility was deficient with regard to the structural adequacy of housing facilities to protect and contain the animals during each of the three inspections, on April 26, 1990, July 23, 1990, and March 7, 1991. Housing facilities and enclosures are required by the Regulations to be maintained in good repair to prevent injury to the animals and to contain them. (9 C.F.R. ss 3.75(a), 3.78(a), 3.125(a); CX 2; Tr. 91, 97, 114-115, 182, 351) APHIS has interpreted the structural strength standards to require a perimeter fence that is capable of containing wild and dangerous animals, such as many of those kept by Respondents, and able to prevent intrusion by unauthorized humans, predators, and small mammals which can carry diseases such as rabies. (Tr. 99, 114, 182) Respondents were cited at each of the three inspections for failure to provide an adequate, structurally sound, perimeter fence, at least 8 feet high. On each of the occasions Dr. Dienhart discussed the deficiency and the actions needed to correct the problem with Respondents.

Although Respondents allege (Brief for Respondents at 1) that APHIS allowed them to meet the structural requirement with a 6-foot fence at the time of their initial licensing 15 years ago, they do not allege, nor is there any evidence to suggest, any impropriety by the Administrator in making a change to the height requirement. Respondents' disagreement is with the conclusion reached by the *144 Administrator in interpreting the Act and the Regulations to require an 8-foot fence. It is well settled that an agency's interpretation of the statute which it is charged with administering, and especially an agency's interpretation of its own regulation, is entitled to great deference unless it is clearly erroneous or inconsistent with the language it interprets. Chemical Mfrs. Ass'n v. Natural Resources Defense Council, 470 U.S. 116, 125-126 (1985); Immigration and Naturalization Service v. Stanisic, 395 U.S. 62, 72 (1969). See also Chevron, U.S.A., Inc., v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984); Bailey v. Federal Intermediate Credit Bank, 788 F.2d 498, 499-500 (8th Cir. 1986), cert. denied, 479 U.S. 915 (1986).

**12 Moreover, the evidence demonstrates that Respondents had ample notice that APHIS required an 8- foot perimeter fence and sufficient time to comply with the requirement before the inspections under consideration in this proceeding. Respondents had been cited for this deficiency during two prior inspections, [FN2] and issued a letter of warning in 1987. Nonetheless, they continued to argue that an 8-foot perimeter fence was unnecessary each time that Dr. Dienhart cited the deficiency. (Tr. 98, 114-115, 149) I can only conclude that Complainant correctly cited Respondents for a wilful violation with regard to this deficiency.

Respondents also challenged the alleged structural deficiencies based on evidence of excessive rust. Darren Browning stated, in his testimony, that surface rust does not constitute a structural problem, (Tr. 405) and questioned Dr. Overton regarding a portion of the Federal Register, 56 Fed. Reg. 6462 (1991), [FN3] which states that superficial rust does not pose sanitation problems. However, the deficiencies cited at Respondents' facility do not involve superficial rust. The inspection reports cite excessive rust. Dr. Overton explained that the term superficial rust would apply only to circumstances such as where rust can be removed by rubbing with a finger. (Tr. 360) By contrast, *145 excessive rust is a structural deficiency which can result in multiple problems, including: (1) erosion of structural strength, (2) surface corrosion which obstructs sanitation by harboring organic matter, bacteria and viruses, and (3) the creation of holes in the metal surface, which are a source of injury, and secondary infection to the animals. (Tr. 100-101, 114, 210, 350, 352-353, 360)

Drs. Dienhart and Overton, and Ms. Zordan, also explained the significance of additional structural deficiencies cited, such as splintered wooden areas that can injure animals, erode structural strength, and harbor organic matter and bacteria. (Tr. 96, 100, 314- 316, 327, 356, 373) Wooden areas must also be maintained to be substantially impervious to water to maintain proper sanitation. (Tr. 97, 114, 356) Exposed nails and bolts such as those cited at Respondents' facility are a source of injury and secondary infections to the animals. (Tr. 96, 114, 352-353, 360) Primary enclosures must also be maintained in good structural repair so as to provide adequate shelter from sun, rain or snow. (Tr. 98, 100)

Respondents challenged some of the structural deficiencies cited at their facility by presenting evidence to suggest that areas of splintered wood and exposed bolts, which were listed as deficiencies by Dr. Dienhart, were not cited during a subsequent USDA inspection by another inspector, although the areas were unaltered. Respondents presented the most recent inspection report for their facility, dated April 27, 1992, which contained no citations for deficiencies of these types, (RX 155) and photographs of the areas, which they purported to have been taken one day after that inspection. (RX 156-169) Although Dr. Overton accompanied the new inspector during the April 27, 1992, inspection, Darren Browning did not ask Dr. Overton to authenticate the photographs as accurate portrayals of conditions at Respondents' facility at that time, or to explain the report of that inspection. Moreover, the April 1992 inspection, and the appropriateness of that inspector's judgment, is beyond the scope of this proceeding. With regard to the allegations of this Complaint, the unexplained inspection report warrants negligible evidentiary weight balanced against Complainant's substantial evidence of structural violations.

**13 Respondents challenged another type of structural deficiency by introducing, as an exhibit, a piece of wood with a bolt protruding by one quarter of an inch, which they alleged to be similar to one or more of the protruding bolts that Dr. Dienhart cited as deficiencies at their facility. (RX 196; Tr. 410) However, examination of this exhibit does not persuade me of Respondents' contention that such a bolt is harmless.

Respondents challenged the significance of splintered wooden areas by suggesting that animals scratch up the trees and logs which they have access to *146 in nature. However, as Dr. Overton explained, the use, such as lying on the surface, which an animal makes of wooden areas affects the need for sanitation and the vulnerability to injury. (Tr. 357)

In rebuttal of the structural violation alleged on April 26th, Respondents presented as an exhibit, a piece of rusty cage wire, containing no hole, which they alleged to be the same piece of wire from the jaguar cage that Dr. Dienhart had described as containing a hole. (RX 194; Tr. 410) However, Dr. Dienhart testified that the exhibit was not the same piece of wire which he had cited as a deficiency in the jaguar's cage. Moreover, Respondent Cecil Browning, though present at hearing, did not testify, as he easily could have, to deny the admissions he made during the inspection. After considering all the evidence, including Respondents' additional admissions during testimony and in their Answer, I find that the preponderance of evidence supports the conclusion that the structural strength violation occurred on April 26, 1990, as alleged in the Complaint.

In support of the structural violations alleged on July 23, 1990, Dr. Dienhart presented photographs in addition to his testimony, which were taken the day of the inspection, showing splintered wood surfaces and excessive rust on cage wire and other components of primary enclosures. (CX 8-16, 19, 21; Tr. 116-121, 361)

Respondents challenged some of Complainant's evidence of this violation with testimony by Darren and Delores Browning and various physical exhibits which they alleged to be evidence of conditions at their facility, on July 23, 1990. First, Darren Browning testified that he told Dr. Dienhart during the inspection that the splintered resting board shown in Complainant's photographs (CX 8 and 9) was in an inaccessible portion of the leopard enclosure, where no animal had been housed for several days. (Tr. 403, 433) However, I find credible Dr. Dienhart's testimony that he would not have written up a deficiency if there had been no animal in the cage. (Tr. 453-454)

To oppose Complainant's evidence of excessive rust in the chimpanzee cage, Respondents introduced a rusty metallic angle which they contend is the same type of angle used in the chimpanzee area at the time the deficiency was cited. Respondents allege that the exhibit had been exposed to the same elements of weather as the angles in the chimpanzee cage and therefore served as an indication of their structural strength. (RX 200; Tr. 446-447) While an examination of the angle demonstrates no significant erosion of structural strength, the exhibit does not persuasively show that the rust had not corroded the angle so as to obstruct sanitation. Furthermore, the alleged deficiency which Respondents seek to counter with this exhibit is based upon evidence of *147 excessive rust over extensive surfaces of the enclosure, (CX 14-16, and 21) and the connection of the angle to the time and the area at issue is tenuous at best. I find that this exhibit warrants virtually no evidentiary weight.

**14 Similarly, Respondents' purported exhibit (RX 188) of cage wire from the tamarin enclosure, while consistent with Respondents' contention that this wire was structurally sound enough to contain a one-pound primate, does not persuade me that the rust had not corroded the wire sufficiently to obstruct proper sanitation. After considering all of the evidence, including Respondents' admissions in their Answer and during testimony, and the fact that Dr. Overton concurred in all of Dr. Dienhart's findings of deficiencies during the July 23, 1990, inspection, I conclude that the structural violation alleged in paragraph III C. 1 of the Complaint is clearly proven by a preponderance of the evidence.

Complainant has also carried its burden of proving the structural violations alleged at Respondents' facility on March 7, 1991. Respondents' Answer admitted the truth of some of the evidence in Dr. Dienhart's inspection report and related testimony. Ms. Zordan, the USDA animal care inspector who accompanied Dr. Dienhart during this inspection, also concurred in all of the deficiencies cited.

During the April 26, 1990, and July 23, 1990, inspections, Respondents were cited for failure to maintain water receptacles in a clean and sanitary manner. Respondents challenged, but failed to rebut Complainant's evidence of these violations, which attests to water receptacles containing dirt, or excessive algae or rust, and animals with no source of drinking water other than bathing pools.

Respondents claimed in their Answer (Answer at 5, III, C. 4) and testimony, that alternative sources of water were available to the bobcats and deer, but were not noticed by Dr. Dienhart. (Tr. 402) However, Dr. Dienhart testified that according to his procedure he would have asked if a separate water container were present, in order to inspect it. (Tr. 189) He specifically recalled such a conversation with Respondent Cecil Browning on April 26, 1990, in which he was told that the deer had no source of water other than the pond. (Tr. 183) Cecil Browning did not testify to deny this admission.

Respondents also asserted that both of the water receptacles containing excessive algae, which were photographed in July 1990, were in temporarily unused areas that were not accessible to any animals. (Answer at 5, III C. 4; Tr. 401, 403) However, as previously noted, Dr. Dienhart specifically testified that he would not have photographed a deficiency if no animals were present in the areas.

While admitting in their Answer (Answer at 5, III C. 4) that the bear's pan contained some rust in July 1990, Respondents presented, as an exhibit, a pan *148 which they purported to be one of the two water receptacles photographed in the bear enclosure. Respondents asserted that this exhibit had not been altered since the photograph. (RX 191; Tr. 404) Examination of the exhibit shows rust which could be classified as superficial. However, the photograph of the bear area depicts two receptacles, one of which contains excessive rust. (CX 18) The latter receptacle bears little resemblance to Respondents' exhibit.

**15 After reviewing all of the evidence regarding the allegations, including Respondents' many admissions and Dr. Overton's concurrence in the citations, I conclude that Complainant has proved both the violations of water receptacle sanitation by a preponderance of the evidence.

Complainant has also carried its burden of proof with regard to the two alleged violations involving failure to maintain the sanitation of primary enclosures. Dr. Dienhart's testimony and his inspection report for April 26, 1990, assert that nest boxes in two enclosures had not been maintained in a sanitary condition as required under the Regulations. Although Respondent Cecil Browning admitted at the time of the inspection (Tr. 153), and Respondents agreed in their Answer, that the nest boxes were in need of cleaning, Respondents allege that the soiling was fresh and suggest that it would have been taken care of later the same day. (Answer at 2, C. 3.) However, Dr. Dienhart specifically testified that the deficiency he cited was based upon the presence of animal waste which was not fresh and which indicated that the boxes had not been cleaned in several days. (Tr. 152-153, 196- 198) He explained that the condition of the boxes was indicative of an unhealthy bacteria count and would also attract insect pests. (Tr. 152)

The violation of primary enclosure sanitation which the Complaint alleged on March 7, 1991, is proved by the evidence of areas of wood which were no longer substantially impervious to water and the previously described evidence of excessive rust and splintered wooden surfaces -- conditions which obstruct proper sanitation in addition to any other risks that they pose. Both Dr. Dienhart and Ms. Zordan concurred in the citation of these deficiencies. [FN4]

Respondents are also charged with violating the regulations by failing to employ a sufficient number of staff to maintain the prescribed level of husbandry practices, at the time of the July 1990 and March 1991 inspections. These allegations are proven by the evidence of chronic deficiencies (Tr. 104, 349), *149 some of which involved easily correctable problems, (Tr. 104) and the admissions made by Darren Browning that more staff was needed.

Complainant also alleged that Respondents failed to provide for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards in July 1990. Respondents admit that excessive spoiled food and feces were accumulated in an area adjacent to animal enclosures at their facility, but contend it was fresh material which had been raked up for removal later in the same day. (Answer at 3, III, C. 2; Tr. 400-401) However, Dr. Dienhart testified that while he would not have cited a deficiency for freshly spilled wastes, the accumulation of old matter which he observed was a source of infection, which could be spread to nearby animals through flies attracted by the waste. (Tr. 132) Dr. Overton concurred in the citation of this violation, which is supported by a preponderance of the evidence.

**16 Complainant has also carried its burden of proof regarding the allegation of unsanitary food receptacles in July 1990. Although Darren Browning had admitted during the inspection that the gibbon feeder, which was cited for excessive rust, needed to be replaced, Respondents opposed Complainant's evidence with the testimony of Delores and Darren Browning that only rustproof feeders were used at the time of the inspection. (Tr. 462) A plastic coated feeder was introduced as an exhibit, which Respondents purported to have been in the gibbon cage during the inspection. (RX 190; Tr. 411) On rebuttal, Dr. Dienhart testified that Respondents' exhibit was not similar to the feeder which he had cited and added that he would not have written a deficiency for a rustproof feeder such as the exhibit. (Tr. 460-461) Moreover, Dr. Overton concurred in this deficiency at the time of the inspection.

Respondents also challenge the importance of the presence of feces in the cavies' food container. Respondents contend that the receptacle contained no food at the time and that it was their practice to replace, rather than refill, the container at each meal. (Answer at 4, III C. 3) However, conflicting reports of this incident by Darren Browning, the only one of the Respondents alleged to be present, bring into question his memory of the events. In their Answer, and through Darren Browning's testimony, Respondents allege that Dr. Dienhart was told on July 23, 1990, that the cavies were fed in the evening, with a fresh receptacle used each time. (Answer at 4, III C. 3; Tr. 402) Respondents further allege that, upon receiving this information, Dr. Dienhart directed them to disregard the citation. (Answer at 4, III C. 3) However, Darren Browning also testified that during the inspection, he asked Dr. Dienhart if he wanted to know when the cavies were fed, but that Dienhart replied no. (Tr. 431-432) The preponderance of credible evidence, including the fact that Dr. Overton *150 concurred in this deficiency, supports the violation as alleged.

With regard to the alleged failure to provide an effective program for the control of insects, Complainant's evidence, which is somewhat conflicting, does not sufficiently support the violation. The only insects reported at Respondents' facility were those observed in the area of accumulated waste, where their presence provided the chief basis for the citation of a waste control problem. (Tr. 239) Dr. Dienhart advised Respondents that correcting the waste disposal deficiency would also eliminate the insects. (Tr. 140) The remaining evidence of a pest control deficiency consists of a wasp's nest observed in the colobus area. However, Dr. Dienhart testified on cross-examination that he did not recall seeing any wasps and stated that possibly the presence of the wasp's nest should have been cited as a sanitation deficiency rather than under insect control. (Tr. 239) Standing alone, the evidence which clearly supports the waste disposal violation does not provide a substantial basis for the broader allegation that Respondents failed to establish and maintain an effective program of pest control. The latter allegation is accordingly dismissed.

**17 In their defense Respondents suggest that Dr. Dienhart did not follow proper inspection procedures. They object to the fact that a copy of the inspection report was not always delivered to them at the close of the inspection. (Answer at 11) However, Drs. Dienhart and Overton, and Ms. Zordan testified that during the relevant period, an APHIS inspector was not required to deliver the licensee's copy of the inspection report immediately after the inspection was completed. (Tr. 165-166, 303-304, 371-372) If it were late in the day or other pressing matters, including hostilities between inspector and licensee, made it difficult to fill out the report at the time of the inspection, it could be filled out later and hand delivered to the facility or sent by certified mail. (Tr. 58, 166, 326, 372) Respondents also allege that no deficiencies were explained to them. (Tr. 423, 426) Inspectors are required to discuss deficiencies and recommendations with a responsible representative of the facility, during the inspection or at an exit interview. (Tr. 165-166, 304) Dr. Dienhart testified that he preferred to discuss the deficiencies he cited at both times, during the inspection and again at the exit interview. (Tr. 165) The evidence shows that at each of the inspections of their facility, all of the information in the inspection reports was discussed with at least one of the Respondents. (Tr. 144, 170, 322, 341, 372)

Respondents have also asserted in their defense that they corrected numerous deficiencies during or following the inspection in which each was cited. (Tr. 423, 426) Such corrections have no effect on the existence of the violations. In re Pet Paradise, Inc., AWA Docket No. 90-2, slip op. at 27 (Sept. 16, 1992) *151 Moreover, correction of some particular instances of deficient care does not satisfy the requirement to provide adequate care and facilities on an ongoing basis. As Complainant's witnesses explained, exhibitors such as Respondents can be in continued violation of a requirement through successive deficiencies, each of which is corrected as it is cited. (Tr. 187, 299, 338)

Finally, Respondents allege that they did not receive fair inspections because of hostilities between them and Dr. Dienhart. This contention is without merit. All three USDA inspectors, Dr. Dienhart, Dr. Overton and Ms. Zordan, testified specifically that the inspections were fairly conducted despite the animosity between Respondents and Dr. Dienhart. Further evidence of the fairness and validity of Dr. Dienhart's citation of deficiencies is the fact that Dr. Overton and Ms. Zordan independently concurred in the citation of all deficiencies during the inspections in which they participated.

Sanction

The Administrator seeks an order requiring that Respondents cease and desist from violating the Act and the Regulations, assessing civil penalties and suspending Respondents' license under the Act. According to Departmental policy, 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, giving appropriate weight to the recommendations of the administrative officials with responsibility for achieving the congressional purpose. S.S. Farms Linn County, Inc., 50 Agric. Dec. 476, 497 (1991), appeal docketed, No. 91-70169 (9th Cir. Mar. 8, 1991).

**18 The Act directs that the Secretary shall give due consideration to the appropriateness of the civil penalty with respect to the size of the business, the gravity of the violations, the good faith of the Respondents, and the history of previous violations. 7 U.S.C. s 2149(b). The evidence showed that Respondents' facility is moderately large, covering approximately ten acres and containing 75 to 80 animals, some of which are valuable. (Tr. 91) Although Respondents have no history of prior adjudicated violations, any mitigating effect of this fact is counter-indicated by their continued failure to comply with the perimeter fence requirement after the Department issued a warning letter. See In re Pet Paradise, Inc., AWA Docket No. 90-2, slip op. at 16-21 (Sept. 16, 1992). Respondents have demonstrated good faith in correcting many, if not all, of the deficiencies cited by USDA. With regard to the gravity of the violations, it is significant that although Respondents' violations are serious and wilful, there is no evidence that any of their animals were harmed *152 or injured as a result of the deficiencies at their facility. (Tr. 163, 189) The attending veterinarians attested to the good overall care that Respondents provided to their animals.

While I agree with Complainant that a civil penalty is warranted by the need to deter future violations of the Act, by Respondents and others, I find after consideration of all the requisite criteria, that a civil penalty in the amount of $2,000 will be sufficient, in conjunction with other sanctions, to achieve the remedial purposes of the Act. Although departmental policy places great weight on the recommendations of the administrative officials, S.S. Farms Linn County, Inc., 50 Agric. Dec. at 497, the Judicial Officer has determined that the recommended penalty is not always necessary to achieve the Congressional purpose, in cases involving violations comparable to those committed by Respondents, which would chiefly be classified as housekeeping deficiencies. In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1287 (1988); In re Ervin Stebane, 47 Agric. Dec. 1264, 1274 (1988) The cease and desist provisions requested by Complainant and the suspension of Respondents' license for 30 days, and thereafter until compliance is demonstrated, will enable APHIS to prevent Respondents from resuming operations until they are in full compliance with all requirements. In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. at 1287; In re Ervin Stebane, 47 Agric. Dec. at 1274.

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Respondents contend on appeal that they were not represented by counsel at the hearing and throughout the pre-trial matters, but that was a matter of their own choice. Respondents were originally represented by counsel during settlement negotiations, but when a settlement was not reached, Respondents' counsel withdrew from the case. Complainant's attorney then filed a motion to extend Respondents' time to answer, which motion was granted. The summary of the pre-hearing conference filed by the ALJ states (Summary at 1):

**19 1. I reminded Mr. Browning that as the judge I can not favor either party and I can not be his lawyer. I told him that, although he is not required to have a lawyer, I strongly recommend that he consider retaining one in this case.

In addition, the following colloquy occurred at the outset of the hearing (Tr. 8):

*153 THE COURT: And we've had telephone conferences, and during at least one of these telephone conferences, I have advised you that you have the right not to appear by attorney, but I cannot assist you in connection with the trial of your case, since I must, as the Judge, be fair to both sides. Sometimes these cases can get complicated, and sometimes a lawyer can be helpful, and I've told you that, haven't I, but you decided to represent yourself?

MR. BROWNING: Yes, sir.

It is too late for Respondents to complain now that they were not represented by counsel.

Respondents further contend that the sanction is too severe, but I am in full agreement with the sanction issued in this case for the reasons stated by the ALJ.

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

Order

1. 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) failing to maintain complete records showing the acquisition, disposition and identification of their animals;

(b) failing to establish and maintain a program of adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine;

(c) failing to maintain primary enclosures and housing facilities for nonhuman primates and other animals in good repair, so as to protect the animals from injury and contain them;

(d) failing to maintain proper sanitation of watering receptacles for animals;

(e) failing to maintain proper sanitation of primary enclosures for nonhuman primates;

(f) failing to provide for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards;

(g) failing to maintain proper sanitation of food receptacles for animals;

(h) failing to utilize a sufficient number of employees to maintain the *154 prescribed level of husbandry practices; and

(i) failing to provide veterinary care to animals in need of care.

2. Respondents are jointly and severally assessed a civil penalty of $2,000 which shall be paid by a certified check or money order, made payable to the Treasurer of the United States, and shall be sent, within 60 days after service of this Order upon Respondents, to Frank Martin, Jr., Office of the General Counsel, United States Department of Agriculture, Room 2014, South Building, Washington, D.C. 20250-1400.

3. Respondents' license is suspended for 30 days and thereafter until they demonstrate to APHIS that they are in compliance with the Act and the Regulations and standards issued thereunder. When Respondents, Cecil Browning, Delores Browning, and Darren Browning, demonstrate to APHIS that they are in compliance with the Act and the Regulations and standards issued thereunder, a supplemental order shall be issued in this proceeding, upon a motion of APHIS, terminating this prohibition after expiration of the 30-day period.

**20 The suspension 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 upon Respondents.

FNA1 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).

FN1 On July 2, 1992, Complainant entered a Motion for Filing Amended Complaint to name Cecil Browning, Delores Browning and Darren Browning, d/b/a Alligatorland Safari Zoo, Inc., as party Respondents. In the original Complaint, "Alligatorland Safari Zoo, Inc." was named as party Respondent. However, as explained in Complainant's Motion for Filing Amended Complaint, it was later determined that Alligatorland Safari Zoo has never been incorporated. On July 2, 1992, Respondents were ordered to show cause, within ten days of receipt of the order, why Complainant's motion should not be granted. Respondents failed to oppose Complainant's Motion for Filing Amended Complaint, which was granted on July 24, 1992. In this decision, "the Complaint" refers to the Amended Complaint.

FN2 The August 1986 and August 1989 inspection reports for Respondents' facility identified the failure to provide an adequate perimeter fence. However, the inspection report prepared in July 1987 makes no mention of this deficiency, and indicates that all previous deficiencies noted in August of 1986 were corrected. The reasons for this apparent discrepancy were not conclusively explained during this proceeding. However, Dr. Dienhart hypothesized that possibly an extension of time for completion of the fence was in effect during the July 23, 1990, inspection, in which case the lack of fence would not have been reported as a deficiency at that time. (Tr. 229)

FN3 Final Rule implementing amendments to the Regulations which became effective March 18, 1991. Respondents' reference was to discussion of comments received regarding amendments to 9 C.F.R. § 75(c)(1)).

FN4 Complainant's choice to cite the deficiencies of excessive rust and splintered wood in March 1991, under two violations -- structural strength and sanitation -- is valid and there is more than adequate evidence to support each of two separate violations.

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