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United States Department of Agriculture (U.S.D.A.)

In re: WILLIAM JOSEPH VERGIS
United States
55 Agric. Dec. 148 (1996)


Case Details
Printable Version
Summary:   Except as provided in 9 CFR § 2.11, neither Animal Welfare Act (7 USCS §§ 2131 et seq.) nor regulations issued under Act specifically provide for order prohibiting person who is unlicensed from obtaining license; nevertheless, Act provides that Secretary has general authority to promulgate such "orders," as well as such rules and regulations, as may be necessary to effectuate purposes of Act (7 USCS § 2151), which means that Secretary does have power to order that unlicensed person who violates Act, or regulations or standards under Act, be barred from licensure.

Judge Initial Decision issued by Paul Kane, Administrative Law Judge. Decision and Order issued by William G. Jenson, Judicial Officer. delivered the opinion of the court.


Opinion of the Court:

This case is a disciplinary proceeding under the Animal Welfare Act, as amended, (7 U.S.C. § 2131 et seq.), (hereafter Act), and the regulations issued under the Act, (9 C.F.R. § 1.1 et seq.). The proceeding was instituted by a Complaint filed on June 24, 1993, by the Acting Administrator of the Animal and Plant Health Inspection Service, (hereafter APHIS), United States Department of Agriculture, (hereafter USDA).

The Complaint alleges that Respondent engaged in business as an exhibitor and dealer under the Act without being licensed, and failed to handle an animal so that there was minimal risk of harm to the animal and to the public, in violation of 9 C.F.R. § 2.131(b)(1). Respondent filed an Answer to the Complaint, and a hearing was held in St. Paul, Minnesota, on September 8-9, 1994. Robert A. Ertman, Esq., represented Complainant. James J. Lawton, III, Esq., represented Respondent.

On June 22, 1995, Administrative Law Judge Paul Kane, (hereafter ALJ), issued an Initial Decision and Order assessing a civil penalty of $500 against *149 Respondent and directing that Respondent cease and desist from violations of the Act and the regulations and standards issued under the Act; on August 29, 1995, Complainant appealed to the Judicial Officer to whom authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 has been delegated, (7 C.F.R. § 2.35); [FN1] and on November 6, 1995, the case was referred to the Judicial Officer for decision.

**2 Based upon a careful consideration of the record in this case, I agree with the ALJ that on November 5, 1990, at Phoenix, Arizona, Respondent willfully violated 9 C.F.R. § 2.131(b)(1) by failing to handle a Bengal tiger so that there was minimal risk of harm to the animal and to the public, as alleged in paragraph III of the Complaint. However, I also find that Respondent's willful violation of 9 C.F.R. § 2.131(b)(1) constitutes a violation of the Consent Decision and Order issued in In re Studio Animal Rentals, Inc., AWA Docket No. 88-7 (Feb. 9, 1989). (CX-1.)

Paragraph II of the Complaint alleges that "[f]rom February 11, 1989, and continuing to the present, the [R]espondent has engaged in business as an exhibitor and dealer as defined in the Act and the regulations, without being licensed, in willful violation of section 4 of the Act (7 U.S.C. § 2134), section 2.1 of the regulations (9 C.F.R. § 2.1 (1989, 1992)), and the Decision and Order issued in AWA Docket No. 88-7 on February 9, 1989." Complainant withdrew the allegation in paragraph II of the Complaint that "[f]rom February 11, 1989, and continuing to the present, [R]espondent has engaged in business as a . . . dealer as defined in the Act and the regulations, without being licensed, in willful violation of section 4 of the Act (7 U.S.C. § 2134), section 2.1 of the regulations (9 C.F.R. § 2.1 (1989, 1992)), and the Decision and Order issued in AWA Docket No. 88-7 on February 9, 1989." (Complainant's Appeal and Memorandum in Support Thereof, p. 2. n. 1, hereafter CA.) Based upon the unique circumstances in this case, I agree with the ALJ's dismissal of paragraph II of the Complaint.

Applicable Statute and Regulations

7 U.S.C.:

*150 § 2132. Definitions

When used in this chapter--

. . . .

(h) The term "exhibitor" means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary[.] (7 U.S.C. § 2132(h).)

9 C.F.R.:

PART 1 - DEFINITION OF TERMS

§ 1.1 Definitions.

. . . .

Exhibitor means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary. This term includes carnivals, circuses, animal acts, zoos, and educational exhibits, exhibiting such animals whether operated for profit or not. This term excludes retail pet stores, horse and dog races, organizations sponsoring and all persons participating in State and county fairs, livestock shows, rodeos, field trials, coursing events, purebred dog and cat shows and any other fairs or exhibitions intended to advance agricultural arts and sciences as may be determined by the Secretary. (9 C.F.R. § 1.1.)

*151 PART 2 -- REGULATIONS

 

**3 Subpart I -- Miscellaneous

§ 2.131 Handling of Animals.

. . . .

(b) (1) During public exhibition, any animal must be handled so there is minimal risk of harm to the animal and to the public, with sufficient distance and/or barriers between the animal and the general viewing public so as to assure the safety of animals and the public. (9 C.F.R. § 2.131(b)(1).)

. . . .

Discussion

Respondent, is an individual whose address is 3669 Bear Creek Road East, Askov, Minnesota 55704. (Respondent's Brief in Support of Proposed Findings of Fact, Conclusions of Law and Order, p. 25, ¶ 1, hereafter RB.) In connection with a disciplinary proceeding previously instituted under the Act, Respondent, Studio Animal Rentals, Inc., and Complainant agreed to the entry of a Consent Decision and, in accordance with that agreement, Administrative Law Judge James W. Hunt issued a Decision and Order in In re Studio Animal Rentals, Inc., AWA Docket No. 88-7 (Feb. 9, 1989), (hereafter Consent Decision). (CX-1.) The Consent Decision provides, in pertinent part, that:

Order

1. Respondents [Studio Animal Rentals, Inc., and William Joseph Vergis], their agents, employees, successors and assigns, and all persons acting in concert with them, directly or indirectly, shall cease and desist from violating the Act [Animal Welfare Act, as amended, (7 U.S.C. § 2131 et seq.)] and the regulations and standards issued thereunder . . . . (CX-1, p. 3.)

. . . .

*152 2. Respondent William Joseph Vergis shall not, directly or indirectly, through any agent, employee, corporation, or other device, engage in any activity for which a license is required under the Act and regulations for a period of ten years; provided however, that six years of this ten year period shall be suspended and held in abeyance unless it is found after notice and an opportunity for hearing that he has violated any provision of this order within four years. (CX-1, p. 4.)

In August 1990, Respondent, acting on behalf of Ms. Anne Mackenroth, (then known as Ms. Anne Frantzen), a licensed exhibitor under the Act, (USDA license number 41-C-63; RX-5), entered into a contract with Dun & Bradstreet Software Services, Inc., to exhibit a tiger at the Pointe Resort, Phoenix, Arizona, on November 5, 1990. (Tr. 224-25, 328-31; CX-116A, p. 1; see also CX-104A, pp. 2- 4; CX-117A; CX-118.) Dun & Bradstreet Software Services, Inc.'s, Chairman, John P. Imlay, Jr., paid Respondent for the exhibition, (Tr. 330-31; CX-116A, pp. 1- 2; CX-119), and Respondent moved one 450-pound male Bengal tiger named Sarang owned by Ms. Mackenroth, (Tr. 174-75), from Ms. Mackenroth's Hinckley, Minnesota, facility to Phoenix, Arizona, in early November 1990. (Tr. 331, 340- 42; CX-116A, p. 2.) On the afternoon of November 5, 1990, Respondent exhibited Sarang in the courtyard of the Pointe Resort, Phoenix, Arizona. (CX-101A; CX-104A, p. 2.) During this exhibition, Respondent had Sarang on a leash and stood close to the tiger. (Tr. 139, 147; CX-104A, p. 2.) Ms. Adele Revella, then known as Ms. Adele Kalas, who was at the hotel for a conference, asked Respondent if she could pet the tiger. (Tr. 130, 140, 148; CX-101B, p. 1; CX-104A, p. 2; CX-108, p. 2.) Respondent replied that the tiger was tame and she could pet the tiger. (Tr. 130, 140, 148; CX-101B, p. 1; CX-102, pp. 2-3; CX-104A, p. 2.) Respondent then indicated the manner in which Ms. Revella should approach the tiger. (Tr. 130, 141-43, 148; CX-101B, p. 1; CX-102, p. 3.) As Ms. Revella reached down to pet Sarang, the tiger grabbed Ms. Revella's right leg with his paw, placed Ms. Revella's leg in his mouth, bit down, and stood up, causing Ms. Revella to fall to the ground. (Tr. 130, 143-44, 148; CX-101B, pp. 1-3; CX-102, pp. 1-2; CX-116A, p. 2.) Respondent placed a stick on Sarang's nose and instructed Sarang to release Ms. Revella. (Tr. 131, 144, 148; CX-101B, p. 2; CX-102, p.4.) When Sarang did not obey, Respondent repeatedly struck Sarang with the stick until it broke. (Tr. 131, 144, 148; CX-101B, p. 2; CX- 102, pp. 3-4; CX-104A, p. 2.) For a number of minutes, Sarang dragged Ms. Revella around the grounds of the hotel. (Tr. 131; CX-101B, p. 2; CX-102, p. 3; CX-104A, p. *153 1.) Respondent asked those present to obtain and strike the tiger with a shovel. (Tr. 131; CX-101B, p. 2.) In an attempt to comply with Respondent's request, Mr. Michael Yazbak, one of the hotel guests, found a metal tube and repeatedly struck Sarang on the head with the tube; two hotel employees inserted a broom handle in Sarang's mouth and attempted to pry Sarang's mouth open; and other persons repeatedly hit Sarang with various objects, often on the head. (Tr. 131-32, 145, 148-49; CX-101B, p. 2; CX-102, pp. 3-4; CX-104A, pp. 2-3; CX-108, pp. 8-9.) For some period of time, Sarang bit Ms. Revella's leg harder each time he was hit, but eventually he stopped dragging Ms. Revella and let go of her leg. (Tr. 131; CX-101B, p. 2.) Ms. Revella had been placed in fear of loosing her leg and even her life; Ms. Revella's leg was broken; Ms. Revella sustained a number of cuts and puncture wounds; and Ms. Revella suffered great pain and inconvenience over an extended period of time. (CX-101B, pp. 2-16; CX-102, pp. 2, 4; CX-104A, pp. 1, 3.)

**4 Sarang was seized from Respondent for brief period of time by Arizona state officials, (CX-104A, p. 4; CX-104B), and the Arizona Game and Fish Department issued a citation to Respondent for failing to keep the tiger from public contact and failing to keep the tiger in complete control. (CX-103, p. 4; CX-104A, pp. 1, 4; CX-104D; CX-108, p. 1.) After the incident, Respondent moved Sarang back to Ms. Mackenroth's Hinckley, Minnesota, facility. (CX-116A, p. 2.)

Respondent testified that on November 5, 1990, he handled Sarang in as careful a manner as possible, (Tr. 446-47, 454), he did not handle Sarang negligently, (Tr. 454), and he provided as safe an environment as possible so that there would be minimal risk for the people that were around Sarang. (Tr. 447-49.) Respondent further testified that, during his exhibition of Sarang, he never gave anyone permission to touch or pet Sarang, (Tr. 450-51), he at all times kept his body between Sarang and the patrons that were viewing Sarang, (Tr. 447), and he was never even a foot away from Sarang, (Tr. 449). Specifically, Respondent testified that: "[h]is [Sarang's] hind feet were probably touching my leg or my foot." (Tr. 449, ll. 20-21.) Despite this testimony regarding his proximity to Sarang, Respondent testified that he was not sure of the direction from which Ms. Revella approached Sarang, but believes that "she had to have approached from the front because it was the only opening, so to speak." (Tr. 452, ll. 11-12.) Respondent also testified that he did not know where Ms. Revella came from, (Tr. 453, ll. 15-16), that he did not see Ms. Revella go around behind Sarang, (Tr. 453, l. 19), and that the incident occurred "behind the tiger and behind me." (Tr. 453, ll. 21-22.) Further, *154 Respondent testified that he did not see Ms. Revella reach out and try to pet Sarang until after Sarang moved to grab Ms. Revella's leg. (Tr. 451-52.)

Even if I found Respondent's version of the facts surrounding his handling of Sarang on November 5, 1990, convincing, which I do not, I would not agree with Respondent's conclusions regarding the manner in which he handled Sarang and the risk of harm to the public and Sarang posed by Respondent's handling of Sarang. It appears from Respondent's testimony that Respondent did not see Ms. Revella approach Sarang, and that there was neither sufficient distance nor any barriers between Ms. Revella and Sarang to assure the safety of Sarang and Ms. Revella. The record clearly demonstrates that Respondent, in willful violation of 9 C.F.R § 2.131(b)(1), failed to handle Sarang so that there was minimal risk of harm to Sarang, Ms. Revella, and other members of the public (particularly those members of the public upon which Respondent called, and those which felt compelled, to assist Ms. Revella); and that Respondent's violation caused the very harm to a member of the public that the regulation is designed to prevent. Further, although the record does not reflect that Sarang suffered any physical injuries, the tiger was struck several times with hard objects, often on the head, by Respondent and employees and patrons of the Pointe Resort. For a period of time, Sarang reacted to each blow by biting Ms. Revella's leg harder than he had just prior to the blow, indicating that Sarang was fully aware that he was being hit. Further, a broom handle was inserted into Sarang's mouth and pressure was applied in an attempt to pry open his mouth. The events of November 5, 1990, could not have been pleasant for Sarang, and I infer from the facts that Sarang was harmed.

**5 Respondent's violation of 9 C.F.R. § 2.131(b)(1) also constitutes a violation of the Consent Decision, (CX-1), which specifically provides that "Respondents [Studio Animal Rentals, Inc., and William Joseph Vergis] . . . shall cease and desist from violating the Act [Animal Welfare Act, as amended, (7 U.S.C. § 2131 et seq.)] and the regulations and standards issued thereunder. . . ." (CX-1, p. 3.) 9 C.F.R. § 2.131(b)(1) is a regulation issued under the Act. The Consent Decision further provides that "Respondent William Joseph Vergis shall not . . . engage in any activity for which a license is required under the Act and the regulations for a period of ten years; provided however, that six years of this ten year period shall be suspended and held in abeyance unless it is found after notice and opportunity for hearing that he has violated any provision of this order within four years." (CX-1, p. 4.)

Respondent was provided the requisite notice and opportunity for a hearing in the instant proceeding (record of the instant proceeding), and Respondent's violation of 9 C.F.R. § 2.131(b)(1) on November 5, 1990, is a violation of the *155 Order in the Consent Decision that occurred within 4 years of the effective date of that Order. Therefore, in accordance with the Consent Decision, Respondent is prohibited from engaging in any activity for which a license is required under the Act and the regulations for the 10-year period beginning, as provided in the Consent Decision, on the first day after service of the Consent Decision on Respondent, which was February 11, 1989. (CX-1, p. 5; CA, p. 1.)

Findings of Fact

1. Respondent William Joseph Vergis is an individual whose mailing address is 3669 Bear Creek Road East, Askov, Minnesota 55704.

2. In connection with a previous disciplinary proceeding, In re Studio Animal Rentals, Inc., AWA Docket No. 88-7 (Feb. 9, 1989), Respondent agreed with Complainant to the entry of a Consent Decision.

3. In accordance with the Consent Decision, Administrative Law Judge James W. Hunt ordered Respondent to cease and desist from violating the Act and the regulations and standards issued under the Act.

4. The Consent Decision provides that Respondent shall not, directly or indirectly, through any agent, employee, corporation, or other device, engage in any activity for which a license is required under the Act and regulations for a period of 10 years; provided however, that 6 years of this 10-year period shall by suspended and held in abeyance unless it is found after notice and an opportunity for hearing that Respondent has violated any provision of the order within 4 years.

5. On November 5, 1990, at Phoenix, Arizona, while exhibiting a Bengal tiger, Respondent failed to handle the animal so that there was minimal risk of harm to the animal and to the public, with sufficient distance and/or barriers between the animal and the general viewing public so as to assure the safety of the animal and the public.

Conclusions of Law

**6 1. On November 5, 1990, Respondent willfully violated 9 C.F.R. § 2.131(b)(1) by failing, during the public exhibition of a Bengal tiger, to handle the animal so that there was minimal risk of harm to the animal and to the public, with sufficient distance and/or barriers between the animal and the general viewing public so as to assure the safety of the animal and the public.

*156 2. On November 5, 1990, Respondent violated the cease and desist provisions of the Consent Decision, by violating the Act and a regulation issued under the Act.

Issues Raised By Complainant on Appeal to the Judicial Officer

Complainant raises four issues on appeal. First, Complainant contends that:

The [ALJ] erred in finding that the Respondent was not an exhibitor [required to be licensed under the Act]. (CA pp. 2-7.)

I agree with the ALJ's dismissal of paragraph II of the Complaint, based upon the unique circumstances in this case.

The record clearly establishes, and Complainant and Respondent agree, that since February 1989, Respondent has not been licensed as an exhibitor under the Act, and that, during this period, Respondent repeatedly acted as a booking agent for licensed exhibitors, trained animals for exhibition, handled animals during exhibitions, moved animals in commerce to and from exhibitions, and exhibited animals to the public for compensation. (RB, pp. 6-7, 15; Complainant's Brief in Support of Proposed Findings of Fact, Conclusions of Law, and Order, p. 13, hereafter CB; CA, pp. 3-4.)

Respondent contends that, since he was not the owner of the animals being exhibited and since he always acted as an independent contractor for another person that was licensed under the Act, Respondent was not required to be licensed. (RB, pp. 6-8, 15-23.) Complainant states that, while the record strongly suggests that Respondent owned some of the animals which Respondent trained, handled, moved, and exhibited during the period in which he did not have a license, (CA, p. 4), "[o]wnership of the . . . animals being exhibited is not an element of being an exhibitor." (CB, p. 13; see also CA, pp. 4-5.) Further, Complainant states "that a license under the Animal Welfare Act is not required to operate as a booking agent or trainer", (CB, p. 14; CA, p. 5), and that "APHIS does not require that each circus animal trainer be licensed." (CA, p. 3.) Further still, two of Complainant's witnesses, Mr. John Kirchberg, APHIS Investigator, and Mr. Mark Kurland, Enforcement Specialist, USDA, Regulatory Enforcement, testified that Respondent could act as a booking agent, handler, trainer, and even exhibit animals as a trainer without a license under the Act. (Tr. 57, 78-79, 273-74.) Finally, Ms. Mackenroth testified that she was informed by Mr. Kirchberg and Dr. Magid, Area Supervisor for Regulatory *157 Enforcement and Animal Care, APHIS, that Respondent could continue to work as a trainer. (Tr. 200-01.)

Complainant contends, however, that by virtue of being an independent contractor, Respondent could not exhibit animals without a license. (CA, p. 4.) Complainant characterizes Respondent's defense (that he was acting as an independent contractor for owners of the animals) as an "admission" not a "defense." (CB, p. 13; CA, p. 4.) Thus, the issue posed both by Respondent and Complainant is whether an independent contractor, working for a licensee, must personally be licensed under the Act, in order to exhibit animals to the public for compensation.

**7 Neither the Act nor the regulations exempt persons from the definition of the term "exhibitor" based on the legal relationship those persons have to licensees for whom they work. Moreover, the Secretary could require all those who meet the definition of "exhibitor" to be licensed. However, Complainant's briefs (CB and CA) and the testimony offered by Messrs. Kirchberg and Kurland, two APHIS employees called as witnesses by Complainant, indicate that, at the very least, APHIS exempts employees of licensees from having to be licensed under the Act if those employees only exhibit animals on behalf of their employers. The record does not indicate that Respondent was made aware of any distinction drawn by APHIS between independent contractors and employees of licensees.

The record clearly shows that Respondent was an "exhibitor" as that term is defined in the Act and regulations. However, Complainant has not shown by a preponderance of the evidence that Respondent was working only for himself. Instead, the record indicates that Respondent was working as a (self-described) independent contractor on behalf of persons who were properly licensed under the Act. I agree with Complainant that Respondent could, under the Act and the regulations, be found to be engaged in business as an exhibitor without a license, in willful violation of 7 U.S.C. § 2134 and 9 C.F.R. § 2.1, and in violation of the Consent Decision. However, I reluctantly do not do so here because distinctions unique to this record, which were made between employees of licensees and independent contractors working for licensees, are such that a reviewing court would be presented with too ambiguous a record. Nonetheless, I agree with Complainant that, if Respondent's actions had been for himself or for a person who was not licensed under the Act, Respondent would be found to have engaged in business as an exhibitor without a license, in willful violation of *158 7 U.S.C. § 2134 and 9 C.F.R. § 2.1, thereby contravening the Consent Decision. For the foregoing reasons, on this record, I agree with the ALJ's dismissal of paragraph II of the Complaint.

Second, Complainant contends that:

The [ALJ] erred in finding that the Respondent was a credible witness. (CA p. 10.)

The ALJ found that:

Based upon visual and aural observations of Mr. Vergis' appearance and demeanor during the presentation of his testimony at the hearing, all facts presented by him relating to relevant issues establish the truth of matters therein described. [Footnote omitted.] The evidence presented by Mr. Vergis in this hearing is worthy of belief and entitled to credit. (Initial Decision and Order, Finding of Fact 8, p. 18.)

Complainant contends that the ALJ's finding regarding Respondent's credibility is itself "hopelessly incredible." (CA, p. 22.) Complainant's basis for this contention is the inconsistencies which Complainant finds when comparing Respondent's testimony in the instant case with Respondent's deposition testimony given in connection with Adele Kalas v. Dun & Bradstreet Software Services, Inc., et al., No. CV 92-01867 (Ariz. Super. Ct. June 9, 1992). (CX-201.)

**8 It is the consistent practice of the Judicial Officer to give great weight to the findings by ALJs since they have the opportunity to see and hear witnesses testify. [FN2] However, in some circumstances, the Judicial Officer has reversed as to the facts where: (1) documentary evidence or inferences to be drawn from the facts are involved, In re Gerald F. Upton, 44 Agric. Dec. 1936, 1942 (1985); In re Dane O. Petty, 43 Agric. Dec. 1406, 1421 (1984), aff'd, No. 3-84-2200-R *159 (N.D. Tex. June 5, 1986); In re Aldovin Dairy, Inc., 42 Agric. Dec. 1791, 1797-98 (1983), aff'd, No. 84-0088 (M.D. Pa. Nov. 20, 1984); In re Leon Farrow, 42 Agric. Dec. 1397, 1405 (1983), aff'd in part and rev'd in part, 760 F.2d 211 (8th Cir. 1985); In re King Meat Co., 40 Agric. Dec. 1468, 1500-01 (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 (C.D. Cal. Aug. 11, 1983) (original order of Oct. 20, 1982, reinstated nunc pro tunc), aff'd, 742 F.2d 1462 (9th Cir. 1984) (unpublished) (not to be cited as precedent under 9th Circuit Rule 21); (2) the record is sufficiently strong to compel a reversal as to the facts, In re Eldon Stamper, 42 Agric. Dec. 20, 30 (1983), aff'd, 722 F.2d 1483 (9th Cir. 1984), reprinted in 51 Agric. Dec. 302 (1992); or (3) an ALJ's findings of fact are hopelessly incredible, Fairbank v. Hardin, 429 F.2d 264, 268 (9th Cir.), cert. denied, 400 U.S. 943 (1970); In re Rosia Lee Ennes, 45 Agric. Dec. 540, 548 (1986).

Moreover, the Judicial Officer is not bound by the ALJ's credibility determinations, and may make separate determinations of witnesses' credibility, subject only to court review for substantial evidence. In re Midland Banana & Tomato Co., 54 Agric. Dec. ___, slip op. at 45-46 (Aug. 16, 1995), appeal docketed, No. 95-3552 (8th Cir. Oct. 16, 1995); In re Tipco, Inc., 50 Agric. Dec. 871, 890-93 (1991), aff'd per curiam, 953 F.2d 639 (4th Cir.), 1992 WL 14586, printed in 51 Agric. Dec. 720 (1992), cert. denied, 506 U.S. 826 (1992). See also Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951).

I agree with Complainant that a comparison of Respondent's testimony in the instant case with Respondent's deposition testimony as evidenced by CX-201 reveals inconsistencies. Further, I find that Respondent's testimony regarding his handling of Sarang on November 5, 1990, lacks credibility. On the other hand, I find that much of Respondent's testimony is credible.

Consequently, I have not adopted the ALJ's Finding of Fact Number 8 as part of this final Decision and Order. But, I do not go so far as to find that the ALJ's decision (to credit Respondent's evidence) was erroneous to the point of being hopelessly incredible.

Third, Complainant contends that:

Although the ALJ found that the [R]espondent violated the handling regulations during the exhibition of a tiger, [the ALJ's] discussion of this issue should be rejected because the theory under which [Respondent] was found liable although not an exhibitor is not a correct statement of the law. (CA, p. 22.)

**9 *160 Complainant fails to identify those statements of law in the ALJ's discussion which Complainant believes are incorrect. Instead, Complainant primarily appears to take issue with the ALJ's discussion of the facts surrounding Respondent's November 5, 1990, violation of 9 C.F.R. § 2.131(b)(1). Complainant states as follows:

During a break in rehearsals the respondent took a bengal tiger to a patio area at The Pointe hotel so that people could see it (TR 448). Mr. Vergis was required by section 2.131 of the regulations (9 C.F.R. § 2.131) to handle the tiger as "carefully as possible" to avoid physical harm to the animal. He did not do so. Even if the events occurred as he described them at the hearing (TR 446-454), he did not handle the tiger as carefully as possible. He brought it to a place where people congregated and passed by, and people could get close enough that they were in danger, and as a result, the tiger was in danger. In his version, he placed himself and the tiger so that someone could and did approach from behind, upset the tiger, and be attacked.

However, because the testimony of the respondent is not creditable, it should be found that Ms. Kalas (now Ms. Revella) asked if she could approach the tiger and pet it and that Mr. Vergis invited her to do so and directed her in how to approach, jus [sic] as Ms. Revella and another witness, Mr. Noerr, testified (TR 129-130, 138-145, 147-155). The tiger was on a leash but was a danger to anyone within lunging distance; it was in danger of being beaten with heavy objects (which it was) or being shot. There is no excuse for the manner in which the respondent handled the tiger. (CA, p. 23.)

I agree with the ALJ and Complainant that on November 5, 1990, Respondent willfully violated 9 C.F.R. § 2.131(b)(1). However, I disagree with the Complainant that Respondent "was required by section 2.131 of the regulations (9 C.F.R. § 2.131) to handle the tiger as .carefully as possible' to avoid physical harm to the animal." (CA, p. 23.) Instead, I find that Respondent willfully violated 9 C.F.R. § 2.131(b)(1) because Respondent failed to handle a Bengal tiger so there was minimal risk of harm to the animal and to the public, with sufficient distance and/or barriers between the animal and the general viewing public so as to assure the safety of the animal and the public.

*161 Nonetheless, I have not adopted the ALJ's discussion of Respondent's violation of 9 C.F.R. § 2.131(b)(1) because the ALJ appears to base his finding that Respondent is responsible for the violation of 9 C.F.R. § 2.131(b)(1) upon Respondent's legal relationship to Ms. Mackenroth, who, on November 5, 1990, was both the owner of the Bengal tiger in question and the licensed exhibitor. Specifically, the ALJ states:

The remaining allegation to be resolved addresses the specifics of Mr. Vergis' employment on the afternoon of November 5, 1990. It was on this day that the tiger "Sarang" injured a member of the public. Mr. Vergis testified that he was surprised that a casual spectator approached this heavy animal, even though he had placed it in an area of semi-reclusion and was himself standing in such close proximity to the animal as to be touching it. However, uninvited, the witness, Ms. Revella, testified that she approached "Sarang," which suddenly clamped Ms. Revella's leg, and broke it. During this attack, bystanders struck the animal with an object. (Finding 7) Although this caused no reported trauma to the animal, Mr. Vergis must be sanctioned upon his failure to protect both the animal and the public. It is found that his action and omission was beyond the scope of his employment for Mrs. Mackenroth had certified upon her license applications, (CX 126-A, B) that she would comply with the Department's regulations and standards expressed at ". . . 9 CFR chapter l, subpart A . . ." which included 9 C.F.R. § 2.131(b)(1) (54 Fed. Reg. 36162 (August 31, 1989)). This regulation, in part, provides that animal handlers shall provide sufficient distance or barriers so as to provide the safety [footnote omitted] of separation to animals and spectators. However, as found, Mr. Vergis did not provide this element of safety as both Mrs. Mackenroth and the Department required. His inability to do so was a reflection of his rejection of responsibility, permitting him to be severed from the principal-agent relationship recognized at 7 U.S.C.A. § 2139 (West 1988 & Supp. 1995), and to be assessed a sanction for the performance of an illegal act. Since Mr. Vergis retained the authority to select the details in the performance of his work, Aurora Packing Co. v. N.L.R.B., 904 F.2d 73, 76 (D.C. Cir. 1990) he aborted, in this particular, any common-law employer-employee relationship. While it is recognized that Mrs. Mackenroth engaged Mr. Vergis to perform with her investment, to stand with her tiger in the public eye, she *162 certainly had no discernable right to tell Mr. Vergis how close he should stand to the tiger's weapons, nor what chains or other tools might be appropriate to prevent bodily harm from the animal's natural attributes. The lack of this right describes Mr. Vergis' independent status in the handling of these animals, and when he permitted the mishandling of "Sarang", he did so independently. Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378 (7th Cir. 1991). The facts found (Finding 7) thus require the imposition of sanctions upon this violation of the regulations at 9 C.F.R. § 2.131(b)(1) (54 Fed. Reg. 36162 (August 31, 1989)), a regulation in effect as of November 5, 1990. (Initial Decision and Order, pp. 26-27.)

**10 I do not agree with the ALJ that Respondent's failure to comply with 9 C.F.R. § 2.131(b)(1) severed his legal relationship with Ms. Mackenroth. Moreover, while Respondent's relationship to Ms. Mackenroth may be critical with respect to Ms. Mackenroth's responsibility for the November 5, 1990, violation of 9 C.F.R. § 2.131(b)(1), it is not relevant with respect to whether Respondent violated 9 C.F.R. § 2.131(b)(1). The controlling considerations are that Respondent was responsible for exercising control over Sarang and the manner in which Sarang was handled. During Respondent's public exhibition of Sarang, Respondent did not handle Sarang so that there was minimal risk of harm to Sarang and to members of the public; and, Respondent did not keep sufficient distance and/or barriers between Sarang and the general viewing public so as to assure the safety of Sarang and the public. See generally In re Hank Post, 47 Agric. Dec. 542, 547 (1988).

Fourth, Complainant contends that:

The limited sanctions imposed by the ALJ should not be followed because . . . the ALJ incorrectly dismissed the most serious allegations. (CA, p. 23.)

As discussed above, I do not here reverse the ALJ's dismissal of paragraph II of the Complaint, because of the unique circumstances in this case. Nonetheless, I agree with Complainant that the $500 civil penalty that the ALJ assessed Respondent is inappropriate in light of: (1) the considerations required by the Act to be made regarding the appropriateness of the penalty, (7 U.S.C. § 2149(b)); (2) the Department's sanction policy; and (3) the Respondent's serious, willful violation of 9 C.F.R. § 2.131(b)(1) on November 5, 1990, which resulted in harm to Sarang, the tiger being exhibited, and serious injury to Ms. Revella, a member of the viewing public. In addition, Respondent's *163 violation of 9 C.F.R. § 2.131(b)(1) constitutes a violation of the Consent Decision. The sanction imposed on Respondent is discussed immediately below.

Sanction

As to the appropriate sanction, the Act provides:

7 U.S.C.:

§ 2149.

(a) If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred.

(b) Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. . . . The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations. (7 U.S.C. § 2149(a), (b).)

**11 *164 § 2151.

The Secretary is authorized to promulgate such rules, regulations, and orders as he may deem necessary in order to effectuate the purposes of this chapter. (7 U.S.C. § 2151.)

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, 497 (1991), aff'd, 991 F.2d 803, 1993 WL 128889 (9th Cir. 1993) (not to be cited as precedent under 9th Circuit Rule 36-3)]:

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.

Respondent has at least a moderate-sized operation, and certainly one where the maximum civil penalty would be appropriate. In 1994, Respondent was involved in the exhibition of animals at least a half dozen times, including the training of animals for use in movies, commercials, and photography sessions. (Tr. 353-59.) In 1993, Respondent was involved in the exhibition of animals on at least three occasions, including the training of animals for three motion pictures. (Tr. 359-60.) The period that Respondent was occupied for just one of these 1993 motion pictures, Iron Will, was from November 1992, to the beginning of April 1993, during which period Respondent was paid $1,850 per week. (Tr. 360-62.)

Respondent willfully violated 9 C.F.R § 2.131(b)(1). Respondent's violation was extremely serious and resulted in the very harm that compliance with the regulation is designed to prevent. The record clearly demonstrates that Respondent failed to handle Sarang, a 450-pound male Bengal tiger, so that there was minimal risk of harm to Sarang and to members of the public, in willful violation of 9 C.F.R § 2.131(b)(1). Respondent's violation was the direct cause of the severe injuries, including a broken leg and numerous lacerations and puncture wounds, suffered by Ms. Revella on November 5, 1990, at the Pointe Resort. The record does not reflect that Sarang suffered any physical injuries. However, Sarang was repeatedly struck with hard objects, often on the head, by Respondent and employees and patrons of the Pointe *165 Resort. For a period of time, Sarang reacted to each blow by biting Ms. Revella's leg harder than he had just prior to the blow, indicating that Sarang was fully aware that he was being hit. Further, a broom handle was inserted into Sarang's mouth and pressure was applied in an attempt to pry open his mouth. The events of November 5, 1990, could not have been pleasant for Sarang and I infer from the facts that Sarang was harmed.

Considering the statutory criteria, the Department's sanction policy, and Complainant's recommendation regarding sanction, I believe a civil penalty of $2,500 should be assessed against Respondent, that Respondent should be ordered to cease and desist from further violations of the Act and regulations and standards issued under the Act, and that Respondent should be prohibited from obtaining a license under the Act for one year. [FN3] Further, since Respondent violated a regulation under the Act, he has violated the Consent Decision. As provided in the Consent Decision, Respondent shall be prohibited from engaging in any activity for which a license is required under the Act and regulations for a period of 10 years from the first day after service of the Consent Decision on Respondent, which was February 11, 1989.

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

Order

Paragraph I

Respondent shall cease and desist from violating the Act and the regulations and standards issued under the Act, and in particular, shall cease and desist from:

During public exhibition, failing to handle any animal so that there is minimal risk of harm to the animal and the public, with sufficient distance *166 and/or barriers between the animal and the general viewing public so as to assure the safety of the animal and the public.

Paragraph II

Respondent is assessed a civil penalty of $2,500. The penalty shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded within 120 days of service of this Order to:

Robert A. Ertman

United States Department of Agriculture

Office of the General Counsel

Room 2014 South Building

Washington, DC 20250-1400

The certified check or money order should indicate that payment is in reference to AWA Docket No. 93-25

Paragraph III

Respondent shall not, directly or indirectly through any agent, employee, corporation, or other device, engage in any activity for which a license is required under the Act and regulations until February 11, 1999.

Paragraph IV

Respondent is disqualified from becoming licensed under the Act and regulations for a period of 1 year. This 1-year disqualification period shall begin on February 11, 1999, and end February 10, 2000.

This Order shall become effective on the day after service of this Order on Respondent.

FN1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940, (7 U.S.C. §§ 450c-450g); Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1490 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994, (7 U.S.C. § 6912(a)(1)).

FN2 E.g., In re King Meat Packing Co., 40 Agric. Dec. 552, 553 (1981); compare In re Mr. & Mrs. Richard L. Thornton, 38 Agric. Dec. 1425, 1426-28 (Remand Order), final decision, 38 Agric. Dec. 1539 (1979) (affirming Judge Baker's dismissal of Complaint on remand where she had originally accepted the testimony of Respondent's wife, Respondent's employee, and Respondent's "real good friend" over that of three disinterested USDA veterinarians); In re Unionville Sales Co., 38 Agric. Dec. 1207, 1208-09 (1979) (Remand Order); In re National Beef Packing Co., 36 Agric. Dec. 1722, 1736 (1977), aff'd, 605 F.2d 1167 (10th Cir. 1979).

FN3 Except as provided in 9 C.F.R. § 2.11, neither the Act nor the regulations issued under the Act specifically provide for an order prohibiting a person who is unlicensed from obtaining a license. Nevertheless, the Act provides that the Secretary has the general authority to promulgate such "orders" as well as such rules and regulations, as may be necessary to effectuate the purposes of the Act. (7 U.S.C. § 2151.) In view of this broad authority, the Secretary does have the power to order that an unlicensed person who violates the Act or the regulations or standards under the Act be barred from licensure. See generally In re James Petersen, 53 Agric. Dec. 80, 86 (1994); In re Mary Bradshaw, 50 Agric. Dec. 499, 507 (1991).

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