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

IN RE: MICHEAL McCALL AND KATHY McCALL
United States
52 Agric. Dec. 986 (1993)


Case Details
Printable Version
Summary:   This opinion held that the USDA may impose sanctions even if respondent dealer is not licensed. Respondents were operators of kennel facilities in Washington, Kansas, and in nearby Reynolds, Nebraska. In 1991 and 1992, Respondents each applied for dealer's licenses under the Act and both were denied. The Judicial Officer affirmed that part of the Order by Judge Bernstein (ALJ) assessing civil penalties of $7,500, and ordering Respondents to cease and desist from engaging in any activity for which a license is required without being licensed, and failing to maintain their facilities in accordance with the regulations and standards involving housing, shelter, veterinary care, records, sanitation, cleaning, food, and water. However, the Judicial Officer increased from 1 year to 10 years the period in which Respondents are disqualified from becoming licensed under the Act and regulations.

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 July 6, 1993, Administrative Law Judge Edwin S. Bernstein (ALJ) issued an Initial Decision and Order assessing civil penalties of $7,500, and disqualifying Respondents from becoming licensed under the Act for 1 year, and thereafter until they are in full compliance with the Act, regulations and standards. Respondents were ordered to cease and desist from engaging in any activity for which a license is required without being licensed, and failing to maintain their facilities in accordance with the regulations and standards involving housing, shelter, veterinary care, records, sanitation, cleaning, food, and water.

On July 30, 1993, Respondents appealed to the Judicial Officer, to whom *987 final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. ss 556 and 557 (7 C.F.R. s 2.35). [FNa] On September 24, 1993, Complainant responded to Respondents' Appeal, and, in effect, filed a Cross-Appeal seeking a 10-year license-disqualification order. The case was referred to the Judicial Officer for decision on October 20, 1993.

**2 Based upon a careful consideration of the record, the Initial Decision and Order is adopted as the final Decision and Order, with deletions shown by dots, additions or changes shown by brackets, and with a few trivial editorial changes not specified. The license-disqualification is increased to 10 years. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION (AS MODIFIED)

This proceeding was instituted under the Animal Welfare Act ("Act"), as amended (7 U.S.C. s 2131 et seq.), by a Complaint and Order to Show Cause filed on November 17, 1992, by the Administrator, Animal and Plant Health Inspection Service ("APHIS"), United States Department of Agriculture ("USDA"). The Complaint alleged that Micheal [FN1] and Kathy McCall ("Respondents") wilfully violated the Act, the Regulations (9 C.F.R. s 2.1 et seq.) and standards (9 C.F.R. s 3.1 et seq.) issued pursuant to the Act by selling or delivering for sale dogs without a license, failing to maintain records and identify dogs, and failing to provide appropriate animal care and facilities as provided by the Act. Respondents filed a timely Answer in which they denied all material allegations of the Complaint. I presided over a hearing on March 17 and 18, 1993, in Topeka, Kansas. Complainant was represented by Robert A. Ertman of the Office of the General Counsel, United States *988 Department of Agriculture. Respondents appeared pro se.

Complainant filed proposed findings of fact, proposed conclusions of law and a brief on May 20, 1993. Although Respondents filed their brief five days late on May 24, 1993, I will consider Respondents' arguments because there seems to have been some confusion with regard to the date the briefs were to be filed.

The 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."

The proof in this case far surpasses the preponderance of the evidence, "which is all that is required." In re White, 49 Agric. Dec. 123, 153 (1990). 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 paragraphs III A., IV A., and V C. of the Complaint. I conclude that the denial of Respondent Micheal McCall's license application was proper and that sanctions are appropriate.

Findings of Fact

1. Respondents, Micheal and Kathy McCall, are individuals whose address is Route 2, Box 101, Washington, Kansas 66968. (Records of Service by the Hearing Clerk)

2. Virginia McCall is an adult relation of Respondents who also operated a business selling dogs but who is not a party to this proceeding. (CX 30, p. 10; Tr. 26, 47 50)

**3 3. Kathy McCall submitted license applications under the Act on January 5, 1991, and April 4, 1991. (CX 1, 3)

4. Respondents were advised by APHIS inspector Robert W. Bacon on July 11, 1991:

This is the McCall's 3 inspection & therefore cannot sell into commerce until licensed by the USDA & they have to wait 6 mo. to reapply for licensing to the USDA. (CX 6)

5. Respondents were advised by Walter A. Christensen, of APHIS, by letter dated July 25, 1991, that, due to the failure to pass the third pre-license *989 inspection, they could not engage in activities covered by the Act until licensed by the United States Department of Agriculture. (CX 8)

6. Micheal McCall submitted license applications under the Act on March 12, 1992, and again in July 1992. (CX 25A, 25B)

7. Micheal McCall was advised by APHIS inspector M. Estela B. Orozco on June 25, 1992, that, due to the failure of the Reynolds, Nebraska, facility to pass the pre-license inspection, he could not engage in the sale of dogs to brokers or pet shops until licensed at the Reynolds facility. (CX 29)

8. Micheal McCall was advised by letter dated September 4, 1992, from Walter A. Christensen that his license application was denied. (RX 28)

9. During 1990, beginning about September 20 until November 15, Respondents sold at least 23 dogs to brokers for resale as pets. (CX 18)

10. During 1991, beginning about February 18 until July 25, Respondents sold at least 56 dogs to brokers for resale as pets. (CX 19-20)

11. Also during 1991, on about July 18, Respondents sold at least one dog in the name of their daughter, Laura, to a broker for resale as a pet. (CX 20A pp. 1-2; Tr. 47-49)

12. During 1992, beginning January 1 until March 12, Respondents sold at least 69 dogs for use as pets. (CX 25A)

13. Also during 1992, from June through December, Respondents transported an unknown number of dogs to brokers for resale as pets. (CX 27; Tr. 58-61)

14. An inspection by Robert W. Bacon, for APHIS, of Respondents' Washington, Kansas, facility on April 4, 1991, revealed the following conditions:

a. three dogs were very thin in appearance; (CX 4; Tr. 193)

b. dogs were not individually identified by collar tags or distinctive tattoos; (CX 4)

c. complete records showing the acquisition, disposition, and identification of dogs were not present; (CX 4)

d. outdoor housing facilities did not adequately protect dogs from the elements; (CX 4; Tr. 191)

e. primary enclosures for dogs were not structurally sound and maintained in good repair; (CX 4; Tr. 191-193) and

*990 f. primary enclosures for dogs contained accumulations of waste. (CX 4)

15. An inspection by Mr. Bacon of Respondents' Washington, Kansas, facility on June 20, 1991, revealed the following conditions:

a. dogs had sores and hair loss and were very thin or sick in appearance; (CX 5)

b. dogs were not individually identified by collar tags or distinctive tattoos; (CX 5)

**4 c. complete records showing the acquisition, disposition, and identification of dogs were not present; (CX 5)

d. outdoor housing facilities did not adequately protect dogs from the elements; (CX 5)

e. primary enclosures for dogs were not structurally sound and maintained in good repair; (CX 5)

f. primary enclosures for dogs did not provide the minimum space requirements; (CX 5) and

g. premises where housing facilities were located were not kept free of weeds and grasses. (CX 5)

16. An inspection by Mr. Bacon of Respondents' Washington, Kansas, facility on July 11, 1991, revealed the following conditions:

a. outdoor housing facilities did not adequately protect dogs from the elements; (CX 6) and

b. primary enclosures for dogs were not maintained in a manner which allowed the animals to remain dry. (CX 6)

17. The execution of a search warrant by authorities of the State of Kansas at the Respondents' Washington, Kansas, facility on January 8, 1992, revealed the following conditions:

*991 a. several dogs exhibited symptoms of various diseases and injuries; (CX 32, 36; Tr. 129-187)

b. several dogs were very thin in appearance; (CX 32, 36; Tr. 129-187)

c. watering receptacles for dogs were not kept clean and sanitized; (CX 32, 34-35; Tr. 117) and

d. primary enclosures for dogs were not kept clean and sanitized and contained excessive amounts of waste and feces. (CX 32-35; Tr. 72-126)

18. An inspection by Mr. Bacon of Respondents' Washington, Kansas, facility on March 30, 1992, revealed the following conditions:

a. outdoor housing facilities did not adequately protect dogs from the elements; (CX 26; Tr. 197-198, 202-204) and

b. primary enclosures for dogs were not structurally sound and maintained in good repair. (CX 26; Tr. 198, 204-205)

19. An inspection by M. Estela B. Orozco, for APHIS, of Respondents' Reynolds, Nebraska, facility on June 25, 1992, revealed the following conditions:

a. a written veterinary care plan had not been obtained from a licensed Nebraska veterinarian; (CX 29)

b. surfaces, gates and metal panels on the inside of pens were excessively rusty; (CX 29)

c. running water was not available at the kennel site; (CX 29)

d. buildings lacked sufficient lighting to permit adequate inspection or cleaning; (CX 29)

e. surfaces in contact with dogs in sheltered housing facilities were not impervious to moisture; (CX 29)

*992 f. surfaces in contact with dogs in outdoor housing facilities were not impervious to moisture; (CX 29)

g. primary structures for dogs were not free of items that could cause injury to the animals; (CX 29)

h. food receptacles for dogs were not kept clean and sanitized; and (CX 29)

i. premises where housing facilities were located were not kept free of weeds and grasses. (CX 29)

Conclusions of Law

 

1. Respondents at all times material to this proceeding were acting jointly as dealers as defined in the Act and the Regulations, in wilful violation of 7 U.S.C. s 2134, and 9 C.F.R. s 2.1.

**5 2. On April 4, 1991, Respondents violated the Act and the Regulations and standards issued pursuant to the Act as follows:

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

b. Respondents failed to provide dogs with food of sufficient quantity and nutritive value to maintain the normal condition and weight of the animals in violation of 9 C.F.R. s 3.9(a) (199[2]);

c. 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 9 C.F.R. s 2.75(a)(1) (1991);

d. Respondents failed to maintain outdoor housing facilities for dogs in a manner that adequately protected them from the elements in violation of 9 C.F.R. s 3.4(b) (199[2]);

e. Respondents failed to provide primary enclosures that were structurally sound and kept in good repair in violation of *993 9 C.F.R. s 3.6(a) ( 199 [2]); and

f. Respondents failed to keep primary enclosures for dogs clean and sanitized, to remove excreta and food waste from primary enclosures daily and from under primary enclosures as often as necessary to prevent an excessive accumulation of feces and food waste, to prevent soiling of the dogs and to reduce disease hazards, insects, pests and odors in violation of 9 C.F.R. s 3.11(a) [, (b)] (199[2]).

3. On June 20, 1991, Respondents violated the Act and the Regulations and standards issued pursuant to the Act as follows:

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

b. Respondents failed to provide dogs with food of sufficient quantity and nutritive value to maintain the normal condition and weight of the animals in violation of 9 C.F.R. s 3.9(a) (199[2]);

c. 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 9 C.F.R. s 2.75(a)(1) (1991);

d. Respondents failed to maintain outdoor housing facilities for dogs in a manner that adequately protected the animals from the elements in violation of 9 C.F.R. s 3.4(b) (199[2]);

e. Respondents failed to provide primary enclosures that were structurally sound and maintained in good repair in violation of 9 C.F.R. s 3.6(a) ( 199 [2]);

f. Respondents failed to construct primary enclosures for dogs in a manner that provided sufficient space in violation of 9 C.F.R. s 3.6(c) (199[2]); and

g. Respondents failed to control weeds, grasses and bushes on *994 the premises in a manner that facilitated the required husbandry practices in violation of 9 C.F.R. s 3.11(c) (199[2]).

4. On July 11, 1991, Respondents violated the Act and the Regulations and standards issued pursuant to the Act as follows:

a. Respondents failed to maintain outdoor housing facilities for dogs in such a manner that adequately protected the animals from the elements in violation of 9 C.F.R. s 3.4(b) (199[2]); and

**6 b. Respondents failed to provide primary enclosures for dogs that were structurally sound and maintained in a manner that enabled the animals to remain dry and clean in violation of 9 C.F.R. s 3.6(a) (199[2]).

5. On January 8, 1992, Respondents violated the Act and the Regulations and standards issued pursuant to the Act as follows:

a. Respondents failed to provide adequate veterinary care to animals in need of care in violation of 9 C.F.R. s 2.40 (1992);

b. Respondents failed to provide dogs with food of sufficient quantity and nutritive value to maintain the normal condition and weight of the animals in violation of 9 C.F.R. s 3.9(a) (1992);

c. Respondents failed to keep watering receptacles for dogs clean and sanitized in violation of 9 C.F.R. s 3.10 (1992); and

d. Respondents failed to keep primary enclosures for dogs clean and sanitized, to remove excreta and food waste from primary enclosures daily and from under primary enclosures as often as necessary to prevent an excessive accumulation of feces and food waste, to prevent soiling of the dogs and to reduce disease hazards, insects, pests and odors in violation of 9 C.F.R. s 3.11(a), (b) (1992).

6. On March 30, 1992, Respondents violated the Act and the Regulations and standards issued pursuant to the Act as follows:

*995 a. Respondents failed to maintain outdoor facilities for dogs that provided areas of shade large enough to contain all of the animals at one time and protect them from the direct rays of the sun in violation of 9 C.F.R. s 3.4(b) (1992); and

b. Respondents failed to provide primary structures for dogs that were structurally sound and maintained in good repair in violation of 9 C.F.R. s 3.6(a) (1992).

7. On June 25, 1992, Respondents violated the Act and the Regulations and standards issued pursuant to the Act as follows:

a. Respondents failed to establish a program of veterinary care under the supervision and assistance of a doctor of veterinary medicine licensed in the State of Nebraska in violation of 9 C.F.R. s 2.40 (1992);

b. Respondents failed to maintain housing facilities with interior surfaces free from excessive rust in violation of 9 C.F.R. s 3.1(c) (1992);

c. Respondents failed to provide adequate running potable water in housing facilities in violation of 9 C.F.R. s 3.1(d) (1992);

d. Respondents failed to provide sufficient lighting in sheltered housing facilities in violation of 9 C.F.R. s 3.3(c) (1992);

e. Respondents failed to provide indoor floor areas and other surfaces which came in contact with dogs in sheltered housing facilities that were impervious to moisture in violation of 9 C.F.R. s 3.3(e) (1992);

f. Respondents failed to provide building surfaces which came in contact with dogs in outdoor housing facilities that were impervious to moisture in violation of 9 C.F.R. s 3.4(c) (1992);

g. Respondents failed to provide structurally sound primary enclosures and failed to keep the enclosures free from sharp *996 points and edges in a manner that protected dogs from injury in violation of 9 C.F.R. s 3.6(a) (1992);

**7 h. Respondents failed to provide clean and sanitized food receptacles for dogs in violation of 9 C.F.R. s 3.9(b) (1992); and

i. Respondents failed to keep the premises where housing facilities were located clean and free of trash, junk, waste products, and discarded matter and failed to control weeds and grasses in violation of 9 C.F.R. s 3.11(c) (1992).

8. Respondents' violations were significant and wilful. A wilful violation is defined as one where the violator either intentionally does the 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).

Discussion

Respondents are operators of kennel facilities in Washington, Kansas, and in nearby Reynolds, Nebraska. In 1991 and 1992, Respondents each applied for dealer's licenses under the Act and both were denied. During this period, APHIS inspections were conducted at Respondents' facilities and Kansas authorities executed a search warrant at Respondents' Washington, Kansas, facility. The conditions found at Respondents' facilities during the inspections and the execution of the warrant serve as the basis for this proceeding.

Complainant's evidence of the alleged violations at the facilities was presented through the testimony of APHIS animal care inspectors, the written reports of their inspections at Respondents' facilities, and through the testimony of individuals involved in the execution of a search warrant by Kansas authorities at Respondents' Washington, Kansas, facility. I found Complainant's witnesses who were present at Respondents' facilities - Jack Jones, Dr. Paul Grosdidier, and Robert Bacon - to be sufficiently experienced experts to enable them to properly evaluate Respondents' facilities and dogs with respect to the alleged violations.

Respondents' evidence was presented through the cross-examination of Complainant's witnesses and through the introduction of documents as exhibits. Although both were listed as witnesses, neither of the Respondents *997 testified at the hearing, nor did Respondents call any additional witnesses to rebut Complainant's evidence.

I. Respondents Operated Jointly as Dealers Under the Act

Several witnesses testified with regard to Complainant's allegation that Respondents operated as dealers as defined by the Act and the regulations. A "dealer" is defined as "any person who, in commerce, for compensation or profit, delivers for transportation, or transports . . . buys, or sells . . . [a]ny dog . . . for use as a pet." 9 C.F.R. s 1.1 (1992)

Based upon the totality of the evidence, I conclude that Respondents operated the facilities as dealers together in the form of a joint enterprise, each sharing in the various aspects of managing the kennels, such as feeding and watering the dogs, maintaining the facilities, transporting dogs to brokers for sale as pets and overseeing the financial aspects of the business. The evidence that I found to be significant in reaching this conclusion includes: a) the affidavit and testimony of Sam West describing his purchase of puppies from Kathy McCall (CX 22; Tr. 16-19); b) the testimony of Cindy West describing her purchase of puppies from Kathy McCall (Tr. 43-58); c) the exhibits showing brokers' printouts that list Respondents' telephone number and describe the puppies sold along with copies of checks made payable to Kathy McCall and to the McCalls' children - Cindi, Jeremy, Laura, and Micah (CX 18-20A, 30, pp. 18- 19); d) the affidavit and testimony of Richard Waldron describing the delivery of puppies by Micheal McCall (CX 27; Tr. 58-62); e) the license applications submitted by each of Respondents showing the same location and telephone number for both facilities (CX 1, 3, 25A, 25B); f) the license application submitted by Micheal McCall on March 12, 1992, showing Kathy McCall, Virginia McCall, and children listed in the "Owners, Partners and Officers" section (CX 25A); g) the affidavit and testimony of Lowell May recounting statements made by Micheal McCall with regard to the operation of the kennel (CX 31; Tr. 62-68); h) the testimony of Robert Bacon that Micheal McCall was present during all but one of the inspections and took the "leading role" in the inspection walk-through when he was present; (Tr. 237) and i) the testimony of Respondents during the Kansas criminal proceeding against Kathy McCall regarding the operation of the facilities and the division of kennel management responsibilities. (CX 30, pp. 17, 37-39)

**8 Respondents argue in their brief that the testimony of Sam West reveals that they did not profit from their operations and that, therefore, they were *998 not dealers under the Act. The definition of "dealer" under the Act and Regulations also includes those who are compensated for the sale of dogs. The evidence clearly shows that Respondents were compensated for the sale of dogs to brokers. (CX 18-20A)

Respondents also argue that because the dealer license applications they submitted were checked "individual" for the organization type, and because the checks shown in CX 18-20A were not made payable to both Micheal McCall and Kathy McCall, they cannot be found to have operated the kennel together. Respondents' arguments favor form over substance. In In re White, 49 Agric. Dec. 123 (1990), the Judicial Officer, addressing the issue of joint and several liability of spouses for violations of the Act, stated as follows:

It is of no particular relevance that the license for the facility was held in the name of Gus White III, alone; the business was operated by both. Nor is it of any particular significance whether [his wife] was providing the "normal assistance" one spouse would give the other. Any two people who acted together as they did should be held jointly responsible. When two persons act together in the exhibition of animals, it is not necessary that their relationship meet all of the technical requirements for a partnership or joint venture in order to hold that both are exhibitors and jointly and severally liable for violations.

Id. at 154. (Citations omitted.) See also, In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476 (1991), aff'd, [991 F.2d 803 (9th Cir. 1993) (Table) (text in WESTLAW) (not to be cited as precedent under 9th Circuit Rule 36 3)]. The evidence submitted by Complainant makes clear that the distinction between Micheal McCall's kennel and Kathy McCall's kennel was so blurred as to make them, in reality, a single operation for which both individuals were jointly responsible. Respondents have failed to submit any evidence that persuades me otherwise.

With the exception of 14 dogs, Complainant has carried its burden of proof as to the number of animals sold and the timing of the sales. The evidence shows that sales of at least 149 dogs occurred between September 20, 1990, and December 1992. (CX 18 20A, 25A, 27; Tr. 58-61)

Respondents contend that, according to Cindy West's testimony, the checks made payable to Cindi, Jeremy, Laura, and Micah McCall shown in CX 20A were not for the purchase of Respondents' dogs, but instead represented *999 payments for 15 dogs belonging to Virginia McCall. With the exception of one check, I agree with Respondents' contention. An examination of the transcript reveals that West did not make this assertion with regard to the first check, dated November 19, 1991, for one dog sold in the name of Respondents' child, Laura McCall. (CX 20A, p. 1) With regard to the remaining 14 dogs, I find that Cindy West's uncontradicted testimony established that the dogs were actually the property of Virginia McCall, who is not a party to this proceeding. (Tr. 47-49) However, this reduction in the total number of dogs sold by Respondents during 1991 is insignificant and does not affect my final decision.

**9 Respondent Micheal McCall's application for license, filed March 12, 1992, shows that 69 dogs were sold between January 1 and March 12, 1992. (CX 25A) Respondents argue in their brief that Mr. McCall did not provide any figure for the number of dogs sold when he submitted the application and contend that the figure was inserted by someone from APHIS. However, the testimony of Robert Bacon indicates that, if it was inserted by APHIS, the number was provided by Micheal McCall in response to an inquiry by Mr. Bacon. (Tr. 226-227) Therefore, I conclude that Respondents sold at least 69 dogs in 1992.

The testimony and affidavit of Richard Waldron indicate that, in 1992, the delivery of dogs by Respondents continued from June through December 1992, although there is no mention of the exact number of animals involved. (CX 27; Tr. 59) Respondents argue in their brief that the delivery of dogs is not evidence that the actual sale was consummated. However, the delivery of the animals to a dog broker by Respondents over a six-month period, in combination with the numerous factors listed earlier, is strong circumstantial evidence that Respondents were transporting and selling dogs as pets through December 1992. Moreover, the Regulations define a "dealer" not only as one who sells dogs, but also one who delivers for transportation, or transports dogs intended to be sold as pets. 9 C.F.R. s 1.1 (1992).

II. Violations of Veterinary Care, Identification and Recordkeeping Requirements

Complainant has carried its burden of proof with respect to Respondents' failure to provide veterinary care to animals in need of care in violation of 9 C.F.R. s 2.40. The APHIS inspection reports dated April 4 and June 20, 1991, (CX 4, 5), as well as the exhibits submitted in connection with the January 8, 1992, search (CX 32-36) document the presence of abnormally thin *1000 dogs and dogs with conditions or illnesses requiring veterinary attention. With regard to the January 8, 1992, search of Respondents' Kansas facility, I found the testimony of Dr. Paul Grosdidier, an experienced veterinarian employed by the Kansas Animal Health Department, to be reliable and convincing. Dr. Grosdidier's detailed description of the condition of each of the animals he inspected during the January 8, 1992, search clearly supports Complainant's allegation that Respondents failed to provide adequate veterinary care to animals in need of care at the Washington, Kansas, kennel. (Tr. 127- 189) In addition, the APHIS report for the Reynolds, Nebraska, kennel, dated June 25, 1992, (CX 29), shows a deficiency for failure to establish a program of veterinary care under a licensed Nebraska veterinarian.

Respondents point in their brief to the testimony of APHIS Inspector Bacon at Tr. 240-241 as evidence of the existence of a veterinary program. However, this testimony merely reveals that, during 1991, Mr. Bacon was advised by Kathy McCall that she employed a veterinarian. Mr. Bacon's reports documenting the presence of sick or thin dogs during two of three inspections in 1991 persuasively contradict Mrs. McCall's self-serving statement to Bacon that she had a veterinary program. (CX 4, 5)

**10 Complainant has also carried its burden with regard to Respondents' failure to maintain complete records showing the acquisition, disposition, and identification of dogs as required by 7 U.S.C. s 2140, and 9 C.F.R. s 2.75(a)(1). Respondents' failure to maintain records is noted in APHIS inspection reports dated April 4 and June 20, 1991. (CX 4, 5) Respondents did not present evidence at the hearing to dispute this allegation.

Complainant has not carried its burden of proof as to Respondents' failure to individually identify dogs as required by 7 U.S.C. s 2141, and 9 C.F.R. s 2.50. The APHIS inspection reports dated April 4 and June 20, 1991, (CX 4, 5), indicate the presence of dogs that were not individually identified with collar tags or tattoos. Mr. Bacon testified that he noted the deficiency because several dogs did not have an identification number and could not be found in the records. (Tr. 249) Respondents contend that, until they were licensed by the USDA, it would have been impossible for them to have complied with the identification and recordkeeping requirements of 9 C.F.R. ss 2.50 and 2.75. The testimony on this subject is somewhat convoluted, but the APHIS inspector's explanation appears to be that, although the official USDA number is not available for use until an applicant is licensed, inspectors require some form of recordkeeping. (Tr. 208-210) Respondents could not receive official USDA identification numbers until they were licensed. (Tr. 209-210) Even though the USDA identification numbers were *1001 not available, it appears that Mr. Bacon cited Respondents for recordkeeping violations because he felt that other important information could have been recorded by Respondents such as the animals' place of origin, date of arrival, and date of sale. (Tr. 209) I agree that Respondents violated the s 2.75 recordkeeping requirements. However, they did not violate the identification requirements of s 2.50. Obviously, failure to provide a non-existent number can not be a violation.

III. Violations of Standards Applicable to Animal Care and Housing

I note initially that, with regard to the alleged wilful violations of the standards applicable to s 2.100(a) of the Regulations, Respondents correctly point in their brief to the discrepancy between the Complaint and the first APHIS inspection report, dated April 4, 1991, (CX 4), as to the specific regulation section numbers cited as deficiencies. The inspection form, which is apparently an older version of the forms used in the 1992 inspections at Respondents' facilities, shows deficiencies marked in sections covering outdoor facilities, primary enclosures, and animal health and husbandry. The section numbers circled by the inspector in the report do not correspond with the current C.F.R. sections cited in the Complaint as violations. In addressing technical pleading errors in a similar case, the Judicial Officer stated:

[I]t is well settled that the formalities of court pleading are not applicable in administrative proceedings. 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. Due process is satisfied when the litigant is reasonably apprised of the issues in controversy. 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.

**11 In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066 (1992), appeal docketed, No. 92-3740 (7th Cir. Nov. 12, 1992) (citations omitted) (footnote omitted).

Upon a review of the record and an examination of the current C.F.R. sections, I find it to be a harmless technical error that the C.F.R. sections cited in the Complaint do not correspond numerically with those noted on the April 4, 1991, APHIS inspection report. The back of the inspection report *1002 contains the APHIS inspector's comments detailing the substance of each recorded deficiency. This made it clear which standard was violated, whether it was protection from the elements, maintenance of primary enclosures or cleaning of enclosures. Moreover, the actual section numbers in the C.F.R. that correspond to the violations are quite close in proximity to the numbers listed on the APHIS inspection form. Had Respondents attempted to locate the standards in the C.F.R. volume, they would have easily located the provisions with the aid of the inspector's comments on the back of the report. Therefore, I reach the same conclusions with respect to the deficiencies noted on the April 4, 1991, inspection report as I do with the deficiencies listed on subsequent inspection reports.

In addition, Respondents argue that, in some instances, the specific violations alleged in the Complaint do not correspond exactly with those subsections that were noted in the APHIS inspections reports. For instance, the Complaint in paragraph IV C.2. alleges that on June 20, 1991, Respondents failed to provide primary structures that were structurally sound and maintained in good repair in violation of 9 C.F.R. s 3.6(a)(1). The APHIS inspection report for that date details violations of 9 C.F.R. s 3.6(a)(2)(ii) and (v). This is also a minor technicality. Addressing this same issue, the Judicial Officer has stated that "there is no basis for dismissing any allegations of the Complaint merely because [Complainant] failed to specify the subsections of the regulations or standards involved in some of the alleged violations." In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066 (1992), appeal docketed, No. 92- 3740 (7th Cir. Nov. 12, 1992). In the present case, the general requirements of the standard are set forth in subsection 1, while the remainder of s 3.6(a) fleshes out the details of the general requirements. Minor nonconformities such as this do not result in a fatally defective complaint, as Respondents contend. It is clear from both the Complaint and the inspection reports which standards are involved in this proceeding.

I now turn to the violations of the standards in numerical order:

Complainant has carried its burden of proof as to the violations of 9 C.F.R. s 3.1 with regard to the general requirements applicable to housing facilities. Section 3.1(c) requires the surfaces of housing facilities to be kept free of rust that prevents the required cleaning and sanitization, or that affects the structural strength of the surface. In addition, s 3.1(d) requires the facility to provide adequate running potable water for drinking, cleaning and other husbandry requirements. The APHIS inspection report for the Reynolds, Nebraska, kennel, dated June 25, 1992, (CX 29), indicates the presence of excessive rust on gates and metal panels on the inside of pens, preventing *1003 proper cleaning. The report also notes the lack of available running water at the kennel site.

**12 Respondents object to the June 25, 1992, APHIS inspection report (CX 29) as hearsay. However, USDA proceedings are not bound by traditional hearsay rules and this type of hearsay should be admitted. E.g., In re Corn State Meat Co., Inc., 45 Agric. Dec. 995, 1018 (1986).

Complainant has carried its burden of proof with regard to the allegation that Respondents violated 9 C.F.R. s 3.3, which sets out standards for sheltered housing facilities. Section 3.3(c) requires adequate lighting to permit inspection and cleaning of facilities, and observation of dogs. Section 3.3(e) requires surfaces that come into contact with dogs in sheltered housing facilities to be impervious to moisture. The June 25, 1992, APHIS inspection report covering the Reynolds, Nebraska, facility indicates the inspector found violations of these standards. (CX 29)

Respondents elicited testimony on cross- examination of Sam West, who built the Nebraska kennel for his wife, Cindy West, regarding the adequacy of building materials and lighting used in the structures. (Tr. 28-36) However, Mr. West and his wife vacated the Reynolds facility during April of 1991. (Tr. 42-43) Therefore, Mr. West's testimony regarding the sufficiency of building materials and lighting conditions is not persuasive, since the violations were noted by APHIS over a year later, on June 25, 1992, when conditions may have deteriorated significantly.

Complainant has carried its burden of proof with regard to Respondents' violations of 9 C.F.R. s 3.4, standards applicable to outdoor housing facilities. Section 3.4(b) requires that outdoor facilities have sheltered structures to provide dogs with protection from the elements. Section 3.4(c) addresses construction standards for outdoor facilities and requires the use of materials impervious to moisture. The APHIS inspection reports dated April 4, June 20, and July 11, 1991, as well as March 30, and June 25, 1992, (CX 4-6, 26, 29), cite to violations of standards applicable to outdoor facilities. The inspector, Robert Bacon, noted in the June 20, 1991, and March 30, 1992, reports that shade and entryway flaps were needed in the outdoor dog pens. (CX 5, 26; Tr. 197-98) The July 11, 1991, inspection report, though not containing a specific reference to s 3.4(c), clearly documents outdoor pens that did not protect dogs from the elements or allow them to remain dry. (CX 7) In the inspection report for the Reynolds, Nebraska, facility, completed on June 25, 1992, (CX 29), Dr. Orozco noted a deficiency with regard to the construction standards in s 3.4(c), which require the use of water-impervious materials in surfaces coming into contact with dogs.

*1004 Respondents contend that s 3.4(c) does not require the use of gravel. Instead they argue that it offers a choice of materials (including gravel) that may be used in the construction of floors in outdoor housing facilities. Respondents read this section too broadly. Although s 3.4(c) lists several materials that may be utilized in floor construction, it also . . . requires replacement if there are any prevalent odors, diseases, insects, pests, or vermin. Therefore, the inspector could require the use of gravel if he felt that it would be the only material that could meet the standards under the circumstances.

**13 Complainant has carried its burden of proof as to Respondents' violation of 9 C.F.R. s 3.6, which sets out the minimum standards applicable to primary enclosures. Section 3.6(a) addresses general requirements for primary enclosures, requiring primary enclosures to be designed and constructed of suitable materials and kept in good repair with proper maintenance. Section 3.6(c) sets out additional space requirements for dogs in primary enclosures. In the April 4 and June 20, 1991, and the March 30, 1992, inspection reports, (CX 4, 5, 26), APHIS Inspector Bacon documented several violations of the construction and maintenance standards as well as space requirements violations. The June 25, 1992, APHIS inspection report documented nails and wires protruding into pens at the Reynolds, Nebraska, facility, which could be potentially injurious to the dogs. (CX 29)

Complainant also alleged violations of the general space requirements found in 9 C.F.R. s 3.6(a)(2)(xi) on April 4 and July 11, 1991. The specific section cited by the inspector on the back of the inspection reports for those dates (CX 4, 6) is 9 C.F.R. s 3.6(c)(iii). That section [(9 C.F.R. s 3.6(c)(1)(iii))] requires at least six inches of head space for dogs in primary enclosures. However, that requirement does not become effective until February 15, 1994. Complainant presumably withdrew its allegation contained in paragraph III C.3. of the Complaint, which addressed the April 4, 1991, inspection, for this very reason. The inspector again referred to the same section in his July 11, 1991, report in recording a space requirement deficiency. (CX 6) Because the six-inch head space requirement does not become effective until February 15, 1994, the allegation in paragraph V C. of the Complaint has not been sustained.

Complainant has carried its burden of proof with regard to Respondents' failure to provide food of a sufficient quantity and nutritive value to maintain the normal condition and weight of the dogs kept at the Washington kennel, in violation of 9 C.F.R. s 3.9(a). The exhibits pertaining to the January 8, 1992, search (CX 32-36) clearly indicate the presence of dogs that were not *1005 fed properly. According to the testimony of Dr. Grosdidier, several dogs were unusually thin and showed symptoms of various ailments related to an improper or inadequate diet. (CX 36; Tr. 127-186) Moreover, Jack Jones, Director of the Companion Animal Facilities Program for the Kansas Animal Health Department, testified that he saw empty automatic feeder pans at the Washington kennel during the January 8, 1992, search. (Tr. 117)

Respondents challenged Dr. Grosdidier about the doctor's assessment that the animals that he observed were excessively thin and questioned him about the effect of the lactation process on a dog's weight. (Tr. 145-148) In response, Dr. Grosdidier testified that, although it was true that a dog's weight may decrease slightly during lactation, the animals would not become emaciated if fed properly. (Tr. 147-148) In reference to one dog, Dr. Grosdidier testified that, in nine and one-half years of practice, he had observed many dogs weaning large litters, with none as emaciated as Respondents' animal. (Tr. 147)

**14 In addition, Respondents objected at the hearing to the introduction of the individual animal inspection reports (CX 36) prepared on the scene at the January 8, 1992, search on the ground that the weights recorded for the dogs had not been substantiated by Dr. Grosdidier. However, Dr. Grosdidier's testimony as to the generally emaciated condition of the animals (CX 127-186) and the photographs (CX 34-36) clearly indicate the presence of underweight animals. In addition, Dr. Grosdidier testified as to his experience with determining whether a dog is underweight. (Tr. 167-169) Finally, Dr. Grosdidier stated that he had no reason to believe that the weights as reported to him were inaccurate. (Tr. 182)

Although 9 C.F.R. s 3.9(a) was not noted specifically in the APHIS inspection reports dated April 4 and June 30, 1991, (CX 4, 5), I find that Complainant has carried its burden of proof with regard to its allegation that Respondents violated s 3.9(a) on these dates. My conclusion is based upon the presence of the APHIS inspector's comments on the back of the inspection reports made in connection with the notation of a deficiency for the lack of adequate veterinary care in violation of 9 C.F.R. s 2.40. The comments specifically refer to dogs excessively thin in appearance. I feel that it is reasonable to infer that the dogs were excessively thin because they either had not received proper veterinary care in violation of 9 C.F.R. s 2.40 or they had not received food of a sufficient quantity or nutritive value in violation of 9 C.F.R. s 3.9(a). It is also possible that the animals' condition was due to a combined violation of both sections by Respondents. The exhibits and testimony in connection with the January 8, 1992, search of the Respondents' *1006 Washington, Kansas, facilities clearly show that Respondents were quite capable of failing to provide adequate food for their dogs. Therefore, notwithstanding the lack of a specific reference to 9 C.F.R. s 3.9(a) in the inspection reports for those dates, I conclude that Complainant has carried its burden of proof with regard to Respondents' violations of s 3.9(a) on April 4 and June 20, 1991.

Complainant has carried its burden of proof with regard to Respondents' violations of 9 C.F.R. ss 3.9(b) and 3.10, which set out the minimum standards applicable to feeding and watering. The June 25, 1992, APHIS inspection report documented food receptacles that showed signs of excessive chewing, which prevents proper sanitization. (CX 29) Moreover, the January 8, 1992, execution of the search warrant by Kansas authorities at the Washington, Kansas, facility revealed the presence of water receptacles that were not properly cleaned and sanitized or that contained frozen water. (CX 32-35; Tr. 117)

Complainant has carried its burden of proof with regard to Respondents' violations of 9 C.F.R. s 3.11, which sets forth the minimum standards applicable to cleaning, sanitization, housekeeping, and pest control. The exhibits introduced in connection with the execution of the search warrant by Kansas authorities at the Washington, Kansas, facility clearly document the extraordinarily sordid conditions in which the dogs were housed. (CX 32-35) One of the witnesses present at the scene, Jack Jones, testified that he had seen only one kennel in worse condition than the Washington facility. (Tr. 105-106) Dogs living in primary enclosures that contain excessive accumulations of feces in and under the enclosures are clearly visible in the exhibits. (CX 32-35) Moreover, the larger animals in outdoor facilities can be seen standing in a combination of mud, water, and feces several inches deep in many of the pens. (CX 32-35; Tr. 72-102). Violations of s 3.11 were also noted in the April 4, June 20, 1991, and June 25, 1992, APHIS inspections of the Washington, Kansas, and Reynolds, Nebraska, facilities. (CX 4, 5, 29)

**15 Respondents attempted to challenge some of Complainant's allegations with regard to the conditions at the Washington facility on January 8, 1992, through their cross-examination of Jack Jones. (Tr. 90-102, 110-126) Mr. Jones acknowledged under cross- examination that the weather was adverse during the time surrounding the January 8, 1992, search of the Washington facility and that generally wet and muddy conditions were present in the area, other than solely at the Washington kennel. (Tr. 92-94) However, Mr. Jones also testified that the muddy conditions would not have existed in Respondents' outdoor pens if the pens had been properly constructed with *1007 adequate gravel for drainage. (Tr. 106, 123, 126)

Finally, Respondents argue that the videotape exhibits (CX 32-33) were improperly introduced into evidence because the persons who made the tapes were not present to testify at the hearing. Respondents point for support to a prehearing ruling that I made on March 9, 1993, regarding the admission of videotape exhibits. The ruling was based on a question asked in the abstract. My answer was given in terms of the ideal when I stated that "the person who took the video should testify as to the authenticity of the video." (Emphasis added.) This ruling did not require me to exclude the video exhibits at the hearing. The Judicial Officer has consistently held that administrative hearings are "free from the restrictive, exclusionary rules of evidence applicable in court proceedings. It is well-settled that the rules of evidence and procedure followed in court proceedings are not applicable in administrative proceedings." In re DeJong Packing Co., 39 Agric. Dec. 607, 647-48 (1977), aff'd, 618 F.2d 1329 (9th Cir.), cert. denied, 449 U.S. 1061 (1980). After being apprised of the facts at the hearing, I concluded that the videotapes were sufficiently reliable and accurate to be admitted into evidence. The two videotapes were taken by a volunteer from the Lawrence Humane Society and by a Washington County Deputy Sheriff, during the January 8, 1992, execution of the search warrant at Respondents' Washington, Kansas, facility. (CX 32-33; Tr. 104, 106) Both Jack Jones and Dr. Paul Grosdidier, who were present at the facility during the videotaping and who appeared in the tapes, testified at the hearing that the tapes accurately depicted the conditions at Respondents' facility. (Tr. 102-108; 128-129) With this background information, I concluded that the videotapes were properly authenticated and they were admitted as exhibits. (Tr. 144) I adhere to that ruling.

Sanctions

Complainant has requested that as a civil penalty a fine of $10,000 be assessed against Respondents, that Respondent Micheal McCall's license application be denied, and that Respondents be disqualified from becoming licensed under the Act and regulations for a period of 10 years and thereafter until they have complied with all provisions of the Act, regulations and standards, and the Order to be issued in this case.

**16 Respondents argue that because they are not licensed, the Department is not authorized to impose sanctions in this case. There are numerous cases imposing sanctions under the Act that involve unlicensed dealers. See, e.g., In *1008 re Faircloth, 52 Agric. Dec. [171 (1993), appeal docketed, No. 93 2134 (4th Cir. Sept. 9, 1993)]. This case is somewhat different in that the argument could be made by Respondents that, in their effort to find out what the USDA required of dealers, they were penalized for inviting pre-license inspections of their facilities. However, Respondents' violations were serious, repeated and took place over a period of many months. I have concluded that Respondents, at all material times, were acting as dealers under the Act. Therefore, even if the results of the first inspection of Respondents' facilities were ignored and considered to be "notice," Respondents' continued violations in the same areas described over a substantial period of time are serious in nature and require the imposition of sanctions.

The Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476 (1991), aff'd, [991 F.2d 803 (9th Cir. 1993) (Table) (text in WESTLAW) (not to be cited as precedent under 9th Circuit Rule 36 3)], as follows:

[It is appropriate to state expressly the practice that has been followed by the Judicial Officer in recent cases, viz., that reliance will no longer be placed on the "severe" sanction policy set forth in many prior decisions, e.g., In re Spencer Livestock Comm'n Co., 46 Agric. Dec. 268, 435 62 (1987), aff'd on other grounds, 841 F.2d 1451 (9th Cir. 1988). Rather,] the sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.

Id. at 497.

The Act requires that, prior to the imposition of a civil penalty,

[t]he 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.

7 U.S.C. s 2149(b).

Ability or inability to pay is not a criterion in such cases. In re [Johnson], *1009 51 Agric. Dec. 209, 216 (1992). The exact size of Respondents' business appears to be known only to Respondents who chose not to testify or present evidence on the issue. However, it appears that the size of Respondents' business is at least moderate. Complainant documents the sale of at least 149 dogs by Respondents during the relevant time period. The gravity of the violations is severe. Respondents have not demonstrated any good faith but instead have maintained most of the deplorable conditions over an extended period of time despite notices by government officials. Respondents' facilities were inspected on three occasions prior to the January raid on the Kansas facility. The deplorable conditions that existed at Respondents' facility on January 8, 1992, even after Respondents had been advised of the same or similar violations during prior inspections, demonstrate that Respondents made little or no attempt to comply with the Act. Even after the January raid, Respondents continued to sell dogs and their facilities showed numerous deficiencies at subsequent APHIS inspections.

**17 . . . .

Only three decisions issued by the Judicial Officer during the past ten years provide for greater penalties. In In re Hickey, 47 Agric. Dec. 840 (1988), aff'd, [878 F.2d 385 (9th Cir. 1989) (Table) (text in WESTLAW) (not to be cited as precedent under 9th Circuit Rule 36 3), printed in 48 Agric. Dec. 107 (1989)], the respondent violated numerous provisions of the Act. However, both the Administrative Law Judge and the Judicial Officer, in concluding that the severe sanctions were appropriate in that case, placed significant emphasis upon the fact that the respondents kept false records which facilitated trafficking in stolen pets. Id. at 849-850. The respondent was assessed a $40,000 civil penalty and his license was suspended for 25 years. Id. at 853-854. The second case, In re Gentle Jungle, Inc., 45 Agric. Dec. 135 (1986), involved an exhibitor that was one of the nation's largest suppliers of wild animals for exhibition in motion picture and television productions. Id. at 138. In that case, the Judicial Officer affirmed the Administrative Law Judge's assessment of a $15,300 civil penalty and the permanent revocation of the respondent's license. Id. at 148. The Administrative Law Judge's conclusion was based upon the number and gravity of the respondent's violations and the consideration that the respondent conducted a large and once extremely profitable business as an animal exhibitor. Id. at 146. In In re Anesi, 44 Agric. Dec. 1840 (1985), appeal dismissed, 786 F.2d 1168 (8th Cir) (Table), cert denied, 476 U.S. 1108 (1986), the Judicial Officer affirmed the judge's decision assessing a fine of $1,000 against the wrongdoer and revoking her license. The revocation seemed to be based upon the respondent's contention *1010 that she could not "properly run the kennel and still make a profit." Id. at 1847.

. . . .

In addition, I conclude that a cease and desist order should issue, and that the denial of Micheal McCall's license application was proper.

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Respondents' appeal, in the main, consists of a refiling of the brief previously filed before the ALJ. The ALJ properly rejected Respondents' contentions. Respondents argue that the ALJ's findings are not adequately supported by the record, but, as stated by the ALJ, the "proof in this case far surpasses the preponderance of the evidence, .which is all that is required"' (Initial Decision at 2). [FN2]

In addition, Respondents did not testify or present any other witnesses to testify on their behalf. Although it is unnecessary to draw an adverse inference because of their failure to testify (in view of Complainant's evidence), it is, nonetheless, appropriate to infer that Respondents' testimony would have been adverse to their position here, under the settled principle that has been followed in many proceedings before this Department, [FN3] and *1011 which has also been followed in many judicial proceedings. [FN4] "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted." Lord Mansfield, in Blatch v. Archer, Cowp. 66, quoted with approval in Wigmore, EVIDENCE s 285 (3d ed. 1940).

**18 Respondents argue that the ALJ erred in excluding RX 4, 7, 8, 15, 25, 30, and 31, which consist of letters or statements by the Respondents. The ALJ was willing to receive these exhibits if the Respondents, who were at the hearing, would subject themselves to cross-examination (Tr. 292). The ALJ did not err in refusing to receive Respondents' unsworn statements, since they *1012 were unwilling to submit to cross-examination. In any event, however, I have read the rejected exhibits, and they would not in any way affect the outcome of this proceeding.

Respondents argue that in the application packet relating to their license request, the Department sent a copy of "Aphis Facts" dated August 1990, which erroneously states that once you apply for licensing, you can continue in business for a limited time, until you receive further instructions. This was an error that was soon corrected by APHIS, but it has no bearing on this case. Respondents failed three pre- licensing inspections, viz., April 4, 1991, June 20, 1991, and July 11, 1991. The third inspection report states (CX 6):

This is the McCall's 3 inspection & therefore cannot sell into commerce until licensed by the USDA & they have to wait 6 mo. to reapply for licensing to the USDA.

Respondent Micheal McCall signed the inspection report stating that he received the report on July 11, 1991 (CX 6, item 53). Two weeks later, a letter was sent by APHIS to Respondent Kathy McCall advising her that her license application was denied because the premises did not comply with the standards, and that "[i]f you engage in activities covered under the Animal Welfare Act, you will be cited for violating the Act" (CX 8, p. 1). Nevertheless, Respondents continued to operate as unlicensed dealers for an extended period of time, and after their animals were seized on January 8, 1992, by Kansas authorities, Respondents acquired more dogs and resumed their unlawful business as unlicensed dealers, and continued their violations of the regulations and standards for the humane handling and care of animals. Disregarding Respondents' sales prior to July 11, 1991, when they were notified in writing that they cannot sell into commerce until licensed by USDA, does not affect the sanction in this case.

With respect to the sanction, I agree with the ALJ's assessment of civil penalties of $7,500, and cease and desist order. However, I agree with Complainant that Respondents should be disqualified from becoming licensed for 10 years. Respondents did not simply operate as dealers without being licensed. They did so after they had failed three pre-licensing inspections and had received two written notices that they could not operate without being licensed. Moreover, after these events they operated as unlicensed dealers and held their animals in such deplorable conditions that the animals were seized by State authorities. Even that did not put an end to their unlawful activities as dealers. They subsequently acquired new dogs and resumed *1013 business, maintaining their animals under conditions which violated the regulations and standards for humane care and handling. Their actions were far more egregious than those of other unlicensed dealers or exhibitors in the cases relied upon by the ALJ.

**19 Respondents' violations of the regulations and standards found on January 8, 1992, are similar only in technical terms to those found in most other cases. The language of the regulations, repeated in the conclusions of law, is inadequate to convey just how deplorable the conditions were at Respondents' facility. For example, Conclusion 5(a), which states that on January 8, 1992, "Respondents failed to provide adequate veterinary care to animals in need of care in violation of 9 C.F.R. s 2.40 (1992)," glosses over Respondents' inhumane neglect of their animals, which is described in detail in Complainant's Brief to the ALJ filed May 20, 1993, pages 19-22, as follows:

Dr. Grosdidier's examinations revealed that certain dogs were in need of veterinary care and that certain dogs had not been provided with food of sufficient quantity and nutritive value to maintain their normal condition and weight.

A female Husky was emaciated. (CX 36, p. 1) "Basically, there appeared to be no flesh over the backbone. Her backbone and ribs were very prominent." (TR 130) Also, the Husky had received an eye injury in the recent past.

A female Shar Pei had severe bilateral entropion and blackening of the cornea. (CX 36, p. 2) "Entropion is a condition where the eyelids . . . are curling inward into the eye and are actually scratching the cornea and causes a lot of pain." (TR 131) The condition can be treated but, left untreated, can cause blindness. (TR 131, 132) Although treatment cannot reverse blindness, "[t]he surgery would certainly eliminate the pain that goes with it." (TR 171) In a State proceeding, respondent Kathy McCall testified that "[T]here is nothing wrong with a blind dog. She can produce puppies just fine." (CX 30, pp. 42-43) [The] ears of this dog were thickened and appeared to be infected. (CX 36, p. 2) The photograph shows that there were no stains (such as iodine stains) or oily discharges which would indicate that the condition was being treated. (TR 140-141)

Finally, this dog was thin and had a rough hair coat and thickened skin. A rough, thickened hair coat indicates improper diet and thickened skin indicates an underlying infection or some persistent *1014 irritation. (TR 132-133)

A young female Doberman was emaciated, dehydrated, and had very pale gums suggestive of a parasitic problem. (CX 36, p. 3; TR 133-134) A female Blue Doberman was in the same condition; it weighed 49.5 pounds and should have weighed about 65 pounds. (CX 36, p. 4; TR 134-135) Another female Shar Pei suffered from severe bilateral entropion and was blind or nearly blind. (CX 36, p. 5; TR 135-136) The photographs clearly show that the dog was tightly squinting its eyes and that there was persistent tear staining. This dog also had chronic otitis, again with no signs of treatment. It also was very thin and had a rough haircoat.

Yet another female Shar Pei had severe bilateral entropion. (CX 36, p. 6; TR 137-138) This dog also had a severe gash which, although healing, had been about one and one-half inches long and was still at least a half-inch wide. The wound had not been stitched.

**20 A female Cockapoo had bilateral otitis which was worse in the right ear and had a blackish discharge; yet again there were no signs of any treatment. (CX 36, p. 7; TR 138-139)

A female Cocker Spaniel also had bilateral otitis; yet again there were no signs of any treatment. (CX 36, p. 8; TR 139-140)

A male Doberman had a serious swelling on the left tarsus, suggestive of a bite wound. Although it was clearly infected, there were no signs of any treatment. (CX 36, p. 9; TR 140, 166) Finally, an American Eskimo was found running around, dragging a fractured leg. Dr. Grosdidier testified that the fracture had to be at least a week old because a callus formation was developing around the fracture, which would take about 7 to 14 days. (TR 141) It must be noted that the circumstances called for Dr. Grosdidier to perform only cursory examinations. (TR 147) The conditions which he found were readily apparent to anyone who took the trouble. The respondents displayed an almost unbelievable callousness and willfully failed to provide veterinary care to alleviate the severe pain which these dogs suffered. They also willfully failed to provide dogs with adequate nourishment.

Similarly, Conclusion 5(d), which states that on January 8, 1992,

Respondents failed to keep primary enclosures for dogs clean and *1015 sanitized, to remove excreta and food waste from primary enclosures daily and from under enclosures as often as necessary to prevent an excessive accumulation of feces and food waste, to prevent soiling of the dogs and to reduce disease hazards, insects, pests and odors in violation of 9 C.F.R. s 3.11(a), (b) (1992)

understates the almost unbelievably filthy and unsanitary conditions at Respondents' facility. The two videotapes, CX 32 and 33, and the sets of photographs, CX 34 and 35, show that the dogs lived in mud, water, and feces. The "final walk-around" segment of the longer videotape (CX 32) shows that the interiors of the shelters were covered with caked feces and that water containers were filthy.

Respondents' blatant disregard of the requirements of the Act, regulations and standards clearly warrants adoption of Complainant's recommendation for a 10- year license-disqualification period.

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 regulations and standards thereunder, and in particular, shall cease and desist from:

a. engaging in any activity for which a license is required under the Act and regulations without being licensed as required;

b. failing to establish and maintain a program of adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine and failing to provide veterinary care to animals in need of care;

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

**21 d. failing to maintain housing facilities that are structurally sound and in good repair, so as to protect the animals from injury, contain them, and prevent other animals from entering;

e. failing to provide sheltered housing facilities with adequate lighting and water-impervious surfaces;

f. failing to provide outdoor housing facilities with shelter from the elements and water- impervious surfaces;

g. failing to provide structurally sound primary structures, designed and constructed of suitable materials and kept in good repair with the minimum *1016 space requirements;

h. failing to provide dogs with food of sufficient quantity and nutritive value and failing to maintain proper sanitation of feeding receptacles for dogs;

i. failing to provide potable water in housing facilities and to maintain proper sanitation of water receptacles for dogs;

j. failing to keep primary enclosures clean and sanitized, and failing to remove waste and excreta from primary enclosures daily, and from under primary enclosures as often as necessary to prevent excessive waste accumulations, soiling, disease, or pests; and

k. failing to keep the premises clean and in good repair and free of accumulations of trash, junk, waste, and discarded matter, and to control weeds, grasses and bushes.

2. Respondents are jointly and severally assessed a civil penalty of $7,500, which shall be paid by a certified check or money order, made payable to "Treasurer of the United States," and shall be sent, within 90 days after service of this Order upon Respondents, to Robert A. Ertman, Office of the General Counsel, United States Department of Agriculture, Room 2014, South Building, Washington, D.C. 20250-1417.

3. Respondents are disqualified from becoming licensed under the Act and regulations for a period of 10 years and thereafter until they have complied with all provisions of the Act, the regulations and standards issued pursuant to the Act, and this Order.

4. The denial of Micheal McCall's license application is affirmed.

The cease and desist provisions of this Order and the license-disqualification provisions shall become effective on the day after service of this Order.

Copies of this decision shall be served on the parties.

FN* 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 In prior pleadings and other documents, Mr. McCall's first name is spelled as "Michael." However, upon a review of the exhibits and documents filed by Respondent, it has become apparent that Mr. McCall uses the spelling "Micheal." Therefore, in this decision, his name will be spelled as such and the caption is amended to reflect the same.

FN2 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).

FN3 E.g., In re Mendicoa, 48 Agric. Dec. 409, 420 22 (1989); In re Great American Veal, Inc., 48 Agric. Dec. 183, 224 25 (1989), aff'd, 891 F.2d 281 (3d Cir. 1989) (unpublished); In re McQueen Bros. Produce Co., 47 Agric. Dec. 1611, 1612 13 (1988) (order denying reconsideration), aff'd, 916 F.2d 715 (7th Cir. 1990) (Table) (text in WESTLAW); In re Murfreesboro Livestock Market, Inc., 46 Agric. Dec. 1216, 1229 30 (1987); In re Corn State Meat Co., 45 Agric. Dec. 995, 1018 19 (1986); In re Farmers & Ranchers Livestock Auction, Inc., 45 Agric. Dec. 234, 255 56 (1986); In re Grady, 45 Agric. Dec. 66, 108 09 (1986); In re Haring Meats and Delicatessen, Inc., 44 Agric. Dec. 1886, 1909 10 (1985); In re Saylor, 44 Agric. Dec. 2238, 2487 89 (1985) (decision on remand); In re Petty, 43 Agric. Dec. 1406, 1425 28 (1984), aff'd, No. 3-84-2200-R (N.D. Tex. June 5, 1986); In re Jarosz Produce Farms, Inc., 42 Agric. Dec. 1505, 1509 10 (1983); In re Farrow, 42 Agric. Dec. 1397, 1419 n.7 (1983), aff'd in part and rev'd in part, 760 F.2d 211 (8th Cir. 1985) (merits affirmed; suspension reversed); In re Mattes Livestock Auction Market, Inc., 42 Agric. Dec. 81, 101-02, aff'd, 721 F.2d 1125, 1130 (7th Cir. 1983); In re Stamper, 42 Agric. Dec. 20, 32 n.4 (1983), aff'd, 722 F.2d 1483 (9th Cir. 1984); In re De Graaf Dairies, Inc., 41 Agric. Dec. 388, 402-03 (1982), aff'd, No. 82-1157 (D.N.J. Jan 24, 1983), aff'd mem., 725 F.2d 667 (3d Cir. 1983); In re King Meat Co., 40 Agric. Dec. 1468, 1507 (1981), aff'd, No. CV 81-6485 (C.D. Cal. Oct. 20, 1982), remanded, No. CV 81-6485 (C.D. Cal. Mar. 25, 1983) (to consider newly discovered evidence), order on remand, 42 Agric. Dec. 726 (1983), aff'd, No. CV 81- 6485 (Aug. 11, 1983) (original order of Oct. 20, 1982, reinstated nunc pro tunc), aff'd, 742 F.2d 1462 (9th Cir. 1984) (unpublished); In re Great Western Packing Co., 39 Agric. Dec. 1358, 1363-64 (1980), aff'd, No. CV 81-0534 (C.D. Cal. Sept. 30, 1981); In re Purvis, 38 Agric. Dec. 1271, 1276- 77 (1979); In re Wilcox, 37 Agric. Dec. 1659, 1666-67 (1978); In re Central Ark. Auction Sale, Inc., 37 Agric. Dec. 570, 586-87 (1977), aff'd, 570 F.2d 724 (8th Cir.) (2-1 decision), cert. denied, 436 U.S. 957 (1978); In re Arab Stock Yard, Inc., 37 Agric. Dec. 293, 305, aff'd mem., 582 F.2d 39 (5th Cir. 1978); In re Burrus, 36 Agric. Dec. 1668, 1686-87 (1977), aff'd per curiam, 575 F.2d 1258 (8th Cir. 1978); In re DeJong Packing Co., 39 Agric. Dec. 607, 637-38 (1977), aff'd, 618 F.2d 1329 (9th Cir.) (2-1 decision), cert. denied, 449 U.S. 1061 (1980); In re Loretz, 36 Agric. Dec. 1087, 1100-01 (1977); In re Livestock Marketers, Inc., 35 Agric. Dec. 1552, 1558 (1976), aff'd per curiam, 558 F.2d 748 (5th Cir. 1977), cert. denied, 435 U.S. 968 (1978); In re Whaley, 35 Agric. Dec. 1519, 1522 (1976); In re Casca, 34 Agric. Dec. 1917, 1929-30 (1975); In re Worsley, 33 Agric. Dec. 1547, 1571-72 (1974); In re Trenton Livestock, Inc., 33 Agric. Dec. 499, 514 (1974), aff'd per curiam, 510 F.2d 966 (4th Cir. 1975) (unpublished); In re Speight, 33 Agric. Dec. 280, 300-01 (1974); In re Sy B. Gaiber & Co., 31 Agric. Dec. 474, 499 (1972).

FN4 2 Wigmore, EVIDENCE §§ 285-91 (3d ed. 1940); United States v. Di RE, 332 U.S. 581, 593 (1948); Interstate Circuit v. United States, 306 U.S. 208, 225-27 (1939); Kirby v. Tallmadge, 160 U.S. 379, 383 (1896); Karavos Compania, Etc. v. Atlantica Export Corporation, 588 F.2d 1, 9-10 (2d Cir. 1978); International Union v. NLRB, 455 F.2d 1357, 1362-70 (D.C. Cir. 1971); Milbank Mut. Ins. Co. v. Wentz, 352 F.2d 592, 597 (8th Cir. 1965); Cromling v. Pittsburgh & Lake Erie R.R. Co., 327 F.2d 142, 148-49 (3d Cir. 1963); Hoffman v. CIR, 298 F.2d 784, 788 (3d Cir. 1962); Illinois Central R.R. Co. v. Staples, 272 F.2d 829, 834-35 (8th Cir. 1959); Neidhoefer v. Automobile Ins. Co. of Hartford, Conn., 182 F.2d 269, 270-71 (7th Cir. 1950); Bowles v. Lentin, 151 F.2d 615, 619 (7th Cir.), cert. denied, 327 U.S. 805 (1946); Longini Shoe Mfg. Co. v. Ratcliff, 108 F.2d 253, 256-57 (C.C. P.A. 1939); NLRB v. Remington Rand, Inc., 94 F.2d 862, 867-68 (2d Cir.), cert. denied, 304 U.S. 576 (1938).

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