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

In re: SAMUEL ZIMMERMAN
United States
56 Agric. Dec. 1419 (1997)


Case Details
Printable Version
Summary:   Proof of respondent's willful violations of Animal Welfare Act and regulations and standards is not necessary for revocation or suspension of respondent's license where respondent received notice in writing of facts or conduct that might warrant suspension or revocation of his license, and respondent had opportunity to achieve compliance with requirements of Act and regulations and standards.

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


Opinion of the Court:

The Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations and standards issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-3.142) [hereinafter the Regulations and Standards]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice], by filing a Complaint on February 22, 1996.

The Complaint alleges that: (1) on October 5, 1994, November 15, 1994, and January 31, 1995, Samuel Zimmerman [hereinafter Respondent] failed to maintain complete records showing the acquisition, disposition, and identification of animals in willful violation of section 10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the Regulations (9 C.F.R. § 2.75(a)(1)) (Compl. ¶¶ II(A), III(A), V(A)); (2) on October 5, 1994, Respondent failed to maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine, and on October 5, 1994, November 15, 1994, and January 31, 1995, Respondent failed to provide veterinary care to animals in need of care in willful violation of section 2.40 of the Regulations (9 C.F.R. § 2.40) (Compl. ¶¶ II(B), III(B), V(B)); (3) on October 5, 1994, Respondent failed to store supplies of food and bedding in a manner so as to protect them from spoilage, contamination, and vermin infestation in willful violation of section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.1(e) of the Standards (9 C.F.R. § 3.1(e)) (Compl. ¶ II(C)(1)); (4) on October 5, 1994, Respondent failed to provide primary enclosures for dogs that were structurally sound and maintain primary enclosures for dogs in good repair so as to protect the animals from injury and have no sharp points or edges that could injure the animals in willful violation of section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.6(a)(1) and (a)(2)(i)-(ii) of the Standards (9 C.F.R. § 3.6(a)(1), (a)(2)(i)-(ii)) (Compl. ¶ II(C)(2)); (5) on October 5, 1994, November 15, 1994, and January 31, 1995, Respondent failed to remove excreta from primary enclosures daily in order to prevent soiling of the animals and to reduce disease hazards, insects, pests, and odors in willful violation of section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.11(a) of the Standards (9 C.F.R. § 3.11(a)) (Compl. ¶¶ II(C)(3), III(D)(1), V(D)(1)); (6) on October 5, 1994, November 15, 1994, and January 31, 1995, Respondent failed to keep premises where the housing facilities were located clean and in good repair to protect the animals from injury, to facilitate husbandry practices, and to reduce or eliminate breeding and living areas for rodents and other pests and vermin in willful violation of section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)) (Compl. ¶¶ II(C)(4), III(D)(2), V(D)(2)); (7) on November 15, 1994, and January 31, 1995, Respondent failed to individually identify dogs in willful violation of section 11 of the Animal Welfare Act (7 U.S.C. § 2141) and section 2.50 of the Regulations (9 C.F.R. § 2.50) (Compl. ¶¶ III(C), V(C)); (8) on November 15, 1994, and January 31, 1995, Respondent failed to provide primary enclosures for dogs that were structurally sound and maintain primary enclosures for dogs in good repair so as to protect the animals from injury in willful violation of section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1)) (Compl. ¶¶ III(D)(3), V(D)(3)); (9) on November 15, 1994, Respondent failed to make provisions for the regular and frequent collection, removal, and disposal of animal wastes and other fluids and wastes in a manner that minimizes contamination and disease risks in willful violation of section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)) (Compl. ¶ III(D)(4)); and (10) on January 23, 1995, Respondent denied the Animal and Plant Health Inspection Service entry to inspect his facility in willful violation of section 11 of the Animal Welfare Act (7 U.S.C. § 2141) [FNa1] and section 2.126 of the Regulations (9 C.F.R. § 2.126) (Compl. IV(A)).

*2 On April 10, 1996, Respondent filed an Answer denying the material allegations in the Complaint. Administrative Law Judge James W. Hunt [hereinafter ALJ] presided over a hearing in Lancaster, Pennsylvania, on January 29, 1997. Denise Y. Hansberry, Esq., Office of the General Counsel, United States Department of Agriculture, represented Complainant. [FNaa1] Respondent appeared pro se. [FNaaa1]

On March 14, 1997, Complainant filed Complainant's Proposed Findings of Fact, Conclusions of Law, and Brief in Support Thereof [hereinafter Complainant's Brief]. On April 3, 1997, Respondent filed a letter addressing testimony given at the hearing and transcribed on pages 14, 22, 35, 43, and 67 of the transcript. On May 29, 1997, the ALJ issued a Decision and Order [hereinafter Initial Decision and Order] in which the ALJ: (1) concluded that Respondent violated the Regulations and Standards (Initial Decision and Order at 11); (2) ordered Respondent to cease and desist from violating the Animal Welfare Act and the Regulations and Standards (Initial Decision and Order at 11); and (3) assessed Respondent a civil penalty of $500 (Initial Decision and Order at 12).

On June 30, 1997, Complainant appealed to the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). [FNaaaa1] On July 21, 1997, Respondent filed Response to Appeal Petition; on August 18, 1997, Complainant filed Complainant's Memorandum in Support of Appeal Petition; on September 9, 1997, Respondent filed Respondent's Memorandum in Opposition to Appeal Petition; and on September 10, 1997, the case was referred to the Judicial Officer for decision.

Based upon a careful consideration of the record in this proceeding, I agree with the ALJ's conclusions that: (1) on October 5, 1994, November 15, 1994, and January 31, 1995, Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals in violation of section 2.75(a)(1) of the Regulations (9 C.F.R. § 2.75(a)(1)) as alleged in paragraphs II(A), III(A), and V(A) of the Complaint; (2) on October 5, 1994, November 15, 1994, and January 31, 1995, Respondent failed to keep primary enclosures in good repair in violation of section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1)) as alleged in paragraphs II(C)(2), III(D)(3), and V(D)(3) of the Complaint; (3) on October 5, 1994, and November 15, 1994, Respondent failed to remove excreta from primary enclosures on a daily basis in violation of section 3.11(a) of the Standards (9 C.F.R. § 3.11(a)) as alleged in paragraphs II(C)(3) and III(D)(1) of the Complaint; (4) on October 5, 1994, November 15, 1994, and January 31, 1995, Respondent failed to provide adequate veterinary care for animals in need of such care in violation of section 2.40 of the Regulations (9 C.F.R. § 2.40) as alleged in paragraphs II(B), III(B), and V(B) of the Complaint; (5) on October 5, 1994, Respondent failed to store food in a manner to allow proper cleaning and to prevent infestation in violation of section 3.1(e) of the Standards (9 C.F.R. § 3.1(e)) as alleged in paragraph II(C)(1) of the Complaint; (6) on November 15, 1994, Respondent failed to provide for the adequate drainage of water in violation of section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)) as alleged in paragraph III(D)(4) of the Complaint; (7) on January 23, 1995, Respondent failed to allow Animal and Plant Health Inspection Service officials to inspect his facility in violation of section 2.126 of the Regulations (9 C.F.R. § 2.126) as alleged in paragraph IV(A) of the Complaint; and (8) on January 31, 1995, Respondent failed to keep premises where housing facilities were located clean and in good repair to protect animals from injury, to facilitate husbandry practices, and to reduce or eliminate breeding and living areas for rodents and other pests and vermin in violation of section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)) as alleged in paragraph V(D)(2) of the Complaint.

*3 I disagree with the ALJ's finding that on November 15, 1994, Respondent failed to store food in a manner to allow proper cleaning and to prevent infestation because these facts were not alleged in the Complaint, and the evidence does not support a finding that on November 15, 1994, Respondent failed to store food in a manner to allow proper cleaning and to prevent infestation. Moreover, I disagree with the sanction imposed by the ALJ against Respondent.

Since I agree with most of the ALJ's findings of fact and conclusions of law and much, but not all, of the ALJ's discussion, I have adopted the ALJ's Initial Decision and Order as the final Decision and Order. Additions or changes to the Initial Decision and Order are shown by brackets, deletions are shown by dots, and minor editorial changes are not specified. Additional conclusions by the Judicial Officer follow the ALJ's conclusions of law.

Complainant's exhibits are designated by the letters "CX"; Respondent's exhibits are designated by the letters "RX"; and transcript references are designated by "Tr."

Applicable Statutory Provisions, Regulations, and Standards

7 U.S.C.: 

CHAPTER 54--TRANSPORTATION, SALE, AND HANDLING OF CERTAIN ANIMALS

. . . .

§ 2132. Definitions

When used in this chapter--

. . . .

(c) The term "commerce" means trade, traffic, transportation, or other commerce--

(1) between a place in a State and any place outside of such State, or between points within the same State but through any place outside thereof, or within any territory, possession, or the District of Columbia;

(2) which affects trade, traffic, transportation, or other commerce described in paragraph (1).

. . . .

(f) The term "dealer" means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include--

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

(ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year[.]

. . . .

§ 2140. Recordkeeping by dealers, exhibitors, research facilities, intermediate handlers, and carriers

Dealers and exhibitors shall make and retain for such reasonable period of time as the Secretary may prescribe, such records with respect to the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe. . . . Such records shall be made available at all reasonable times for inspection and copying by the Secretary.

*4 § 2141. Marking and identification of animals

All animals delivered for transportation, transported, purchased, or sold, in commerce, by a dealer or exhibitor shall be marked or identified at such time and in such humane manner as the Secretary may prescribe: Provided, That only live dogs and cats need be so marked or identified by a research facility.

. . . .

§ 2146. Administration and enforcement by the Secretary

(a) Investigations and inspections

The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer, exhibitor, intermediate handler, carrier, research facility, 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 regulation or standard issued thereunder, and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and those records required to be kept pursuant to section 2140 of this title of any such dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale.

. . . .

§ 2149. Violations by licensees

(a) Temporary license suspension; notice and hearing; revocation

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) Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order

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. §§ 2132(c), (f), 2140, 2141, 2146(a), 2149(a)-(b).

*5  9 C.F.R.: 

SUBCHAPTER A--ANIMAL WELFARE

PART 1--DEFINITION OF TERMS

§ 1.1 Definitions.

For the purposes of this subchapter, unless the context otherwise requires, the following terms shall have the meanings assigned to them in this section. The singular form shall also signify the plural and the masculine form shall also signify the feminine. Words undefined in the following paragraphs shall have the meaning attributed to them in general usage as reflected by definitions in a standard dictionary.

. . . .

Commerce means trade, traffic, transportation, or other commerce:

(1) Between a place in a State and any place outside of such State, including any foreign country, or between points within the same State but through any place outside thereof, or within any territory, possession, or the District of Columbia; or

(2) Which affects the commerce described in this part.

. . . .

Dealer means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet; or any dog for hunting, security, or breeding purposes. This term does not include: A retail pet store, as defined in this section, unless such store sells any animals to a research facility, an exhibitor, or a dealer (wholesale); or any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year.

. . . .

PART 2--REGULATIONS

. . . .

SUBPART D--ATTENDING VETERINARIAN AND ADEQUATE VETERINARY CARE

§ 2.40 Attending veterinarian and adequate veterinary care (dealers and exhibitors).

(a) Each dealer or exhibitor shall have an attending veterinarian who shall provide adequate veterinary care to its animals in compliance with this section.

(1) Each dealer and exhibitor shall employ an attending veterinarian under formal arrangements. In the case of a part-time attending veterinarian or consultant arrangements, the formal arrangements shall include a written program of veterinary care and regularly scheduled visits to the premises of the dealer or exhibitor; and

(2) Each dealer and exhibitor shall assure that the attending veterinarian has appropriate authority to ensure the provision of adequate veterinary care and to oversee the adequacy of other aspects of animal care and use.

(b) Each dealer or exhibitor shall establish and maintain programs of adequate veterinary care that include:

(1) The availability of appropriate facilities, personnel, equipment, and services to comply with the provisions of this subchapter;

*6 (2) The use of appropriate methods to prevent, control, diagnose, and treat diseases and injuries, and the availability of emergency, weekend, and holiday care;

(3) Daily observation of all animals to assess their health and well-being; Provided, however, That daily observation of animals may be accomplished by someone other than the attending veterinarian; and Provided, further, That a mechanism of direct and frequent communication is required so that timely and accurate information on problems of animal health, behavior, and well-being is conveyed to the attending veterinarian;

(4) Adequate guidance to personnel involved in the care and use of animals regarding handling, immobilization, anesthesia, analgesia, tranquilization, and euthanasia; and

(5) Adequate pre-procedural and post-procedural care in accordance with established veterinary medical and nursing procedures.

SUBPART E--IDENTIFICATION OF ANIMALS

§ 2.50 Time and method of identification.

(a) A class "A" dealer (breeder) shall identify all live dogs and cats on the premises as follows:

(1) All live dogs and cats held on the premises, purchased, or otherwise acquired, sold or otherwise disposed of, or removed from the premises for delivery to a research facility or exhibitor or to another dealer, or for sale, through an auction sale or to any person for use as a pet, shall be identified by an official tag of the type described in § 2.51 affixed to the animal's neck by means of a collar made of material generally considered acceptable to pet owners as a means of identifying their pet dogs or cats, or shall be identified by a distinctive and legible tattoo marking acceptable to and approved by the Administrator.

(2) Live puppies or kittens, less than 16 weeks of age, shall be identified by:

(i) An official tag as described in § 2.51;

(ii)A distinctive and legible tattoo marking approved by the Administrator; or

(iii)A plastic-type collar acceptable to the Administrator which has legibly placed thereon the information required for an official tag pursuant to § 2.51.

(b) A class "B" dealer shall identify all live dogs and cats under his or her control or on his or her premises as follows:

(1) When live dogs or cats are held, purchased, or otherwise acquired, they shall be immediately identified:

(i) By affixing to the animal's neck an official tag as set forth in § 2.51 by means of a collar made of material generally acceptable to pet owners as a means of identifying their pet dogs or cats; or

(ii)By a distinctive and legible tattoo marking approved by the Administrator.

(2) If any live dog or cat is already identified by an official tag or tattoo which has been applied by another dealer or exhibitor, the dealer or exhibitor who purchases or otherwise acquires the animal may continue identifying the dog or cat by the previous identification number, or may replace the previous tag with his own official tag or approved tattoo. In either case, the class B dealer or class C exhibitor shall correctly list all old and new official tag numbers or tattoos in his or her records of purchase which shall be maintained in accordance with §§ 2.75 and 2.77. Any new official tag or tattoo number shall be used on all records of any subsequent sales by the dealer or exhibitor, of any dog or cat.

*7 (3) Live puppies or kittens less than 16 weeks of age, shall be identified by:

(i) An official tag as described in § 2.51;

(ii)A distinctive and legible tattoo marking approved by the Administrator; or

(iii)A plastic-type collar acceptable to the Administrator which has legibly placed thereon the information required for an official tag pursuant to § 2.51.

. . . .

(d) Unweaned puppies or kittens need not be individually identified as required by paragraphs (a) and (b) of this section while they are maintained as a litter with their dam in the same primary enclosure, provided the dam has been individually identified.

. . . .

SUBPART G--RECORDS

§ 2.75 Records: Dealers and exhibitors.

(a)(1) Each dealer . . . shall make, keep, and maintain records or forms which fully and correctly disclose the following information concerning each dog or cat purchased or otherwise acquired, owned, held, or otherwise in his or her possession or under his or her control, or which is transported, euthanized, sold, or otherwise disposed of by that dealer. . . . The records shall include any offspring born of any animal while in his or her possession or under his or her control.

(i) The name and address of the person from whom a dog or cat was purchased or otherwise acquired whether or not the person is required to be licensed or registered under the Act;

(ii) The USDA license or registration number of the person if he or she is licensed or registered under the Act;

(iii) The vehicle license number and state, and the driver's license number and state of the person, if he or she is not licensed or registered under the Act;

(iv) The name and address of the person to whom a dog or cat was sold or given and that person's license or registration number if he or she is licensed or registered under the Act;

(v) The date a dog or cat was acquired or disposed of, including by euthanasia;

(vi) The official USDA tag number or tattoo assigned to a dog or cat under §§ 2.50 and 2.54;

(vii) A description of each dog or cat which shall include:

(A) The species and breed or type;

(B) The sex;

(C) The date of birth or approximate age; and

(D) The color and any distinctive markings;

(viii) The method of transportation including the name of the initial carrier or intermediate handler or, if a privately owned vehicle is used to transport a dog or cat, the name of the owner of the privately owned vehicle;

(ix) The date and method of disposition of a dog or cat, e.g., sale, death, euthanasia, or donation.

. . . .

SUBPART H--COMPLIANCE WITH STANDARDS AND HOLDING PERIOD

§ 2.100 Compliance with standards.

(a) Each dealer, exhibitor, operator of an auction sale, and intermediate handler shall comply in all respects with the regulations set forth in part 2 and the standards set forth in part 3 of this subchapter for the humane handling, care, treatment, housing, and transportation of animals.

*8 . . . .

SUBPART I--MISCELLANEOUS

. . . .

§ 2.126 Access and inspection of records and property.

(a) Each dealer, exhibitor, intermediate handler, or carrier, shall, during business hours, allow APHIS officials:

(1) To enter its place of business;

(2) To examine records required to be kept by the Act and regulations in this part;

(3) To make copies of the records;

(4) To inspect and photograph the facilities, property and animals, as the APHIS officials consider necessary to enforce the provisions of the Act, the regulations, and the standards in this subchapter; and

(5) To document, by the taking of photographs and other means, conditions and areas of noncompliance.

(b) The use of a room, table, or other facilities necessary for the proper examination of the records and inspection of the property or animals shall be extended to APHIS officials by the dealer, exhibitor, intermediate handler or carrier.

. . . .

PART 3--STANDARDS

SUBPART A--SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT, AND

TRANSPORTATION OF DOGS AND CATS

FACILITIES AND OPERATING STANDARDS

§ 3.1 Housing facilities, general.

. . . .

(e) Storage. Supplies of food and bedding must be stored in a manner that protects the supplies from spoilage, contamination, and vermin infestation. The supplies must be stored off the floor and away from the walls, to allow cleaning underneath and around the supplies. Foods requiring refrigeration must be stored accordingly, and all food must be stored in a manner that prevents contamination and deterioration of its nutritive value. All open supplies of food and bedding must be kept in leakproof containers with tightly fitting lids to prevent contamination and spoilage. Only food and bedding that is currently being used may be kept in the animal areas. Substances that are toxic to the dogs or cats but are required for normal husbandry practices must not be stored in food storage and preparation areas, but may be stored in cabinets in the animal areas.

(f) Drainage and waste disposal. Housing facility operators must provide for regular and frequent collection, removal, and disposal of animal and food wastes, bedding, debris, garbage, water, other fluids and wastes, and dead animals, in a manner that minimizes contamination and disease risks. Housing facilities must be equipped with disposal facilities and drainage systems that are constructed and operated so that animal waste and water are rapidly eliminated and the animals stay dry. Disposal and drainage systems must minimize vermin and pest infestation, insects, odors, and disease hazards. All drains must be properly constructed, installed, and maintained. If closed drainage systems are used, they must be equipped with traps and prevent the backflow of gases and the backup of sewage onto the floor. If the facility uses sump or settlement ponds, or other similar systems for drainage and animal waste disposal, the system must be located far enough away from the animal area of the housing facility to prevent odors, diseases, pests, and vermin infestation. Standing puddles of water in animal enclosures must be drained or mopped up so that the animals stay dry. Trash containers in housing facilities and in food storage and food preparation areas must be leakproof and must have tightly fitted lids on them at all times. Dead animals, animal parts, and animal waste must not be kept in food storage or food preparation areas, food freezers, food refrigerators, or animal areas.

*9 . . . .

§ 3.6 Primary enclosures.

Primary enclosures for dogs and cats must meet the following minimum requirements:

(a) General requirements.

(1) Primary enclosures must be designed and constructed of suitable materials so that they are structurally sound. The primary enclosures must be kept in good repair.

(2) Primary enclosures must be constructed and maintained so that they:

(i) Have no sharp points or edges that could injure the dogs and cats; [and]

(ii)Protect the dogs and cats from injury[.]

. . . .

§ 3.11 Cleaning, sanitization, housekeeping, and pest control.

(a) Cleaning of primary enclosures. Excreta and food waste must be removed 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 or cats contained in the primary enclosures, and to reduce disease hazards, insects, pests and odors. When steam or water is used to clean the primary enclosure, whether by hosing, flushing, or other methods, dogs and cats must be removed, unless the enclosure is large enough to ensure the animals would not be harmed, wetted, or distressed in the process. Standing water must be removed from the primary enclosure and animals in other primary enclosures must be protected from being contaminated with water and other wastes during the cleaning. The pans under primary enclosures with grill-type floors and the ground areas under raised runs with wire or slatted floors must be cleaned as often as necessary to prevent accumulation of feces and food waste and to reduce disease hazards[,] pests, insects and odors.

. . . .

(c) Housekeeping for premises. Premises where housing facilities are located, including buildings and surrounding grounds, must be kept clean and in good repair to protect the animals from injury, to facilitate the husbandry practices required in this subpart, and to reduce or eliminate breeding and living areas for rodents and other pest and vermin. Premises must be kept free of accumulations of trash, junk, waste products, and discarded matter. Weeds, grasses, and bushes must be controlled so as to facilitate cleaning of the premises and pest control, and to protect the health and well-being of the animals.

9 C.F.R. §§ 1.1; 2.40(a), (b), .50(a), (b)(1)-(3), .75(a)(1), .100(a), .126; 3.1(e), (f), .6(a)(1), (a)(2)(i)-(ii), .11(a), (c). (Footnotes omitted.)

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION (AS MODIFIED)

Statement of the Case

. . . .

Respondent . . . is licensed by the Animal and Plant Health Inspection Service [hereinafter APHIS], United States Department of Agriculture, as an animal dealer under the Animal Welfare Act [(CX 7, 7A; Tr. 13)]. His facility is located in Ephrata, Pennsylvania [(CX 3-7A; Tr. 13)]. . . . Respondent, who is also a farmer, has been licensed as a dealer since about 1991 [(Tr. 13, 98)]. The number of animals under his care ranges from about 95 to 143 [(Tr. 15)]. He grosses from $15,000 to $2[5],000 a year from the sale of the animals [(CX 7, 7A)]. The record does not show where the animals are sold. Robert G. Markmann, an APHIS animal care inspector, has inspected Respondent's facility since 1991 [(Tr. 9, 13)].

*10 On October 5, 1994, Mr. Markmann conducted a routine inspection of Respondent's facility to determine his compliance with [the] Regulations and . . . Standards . . . [(CX 3; Tr. 15-16)]. In his report [Mr. Markmann] stated that Respondent had corrected the noncompliant [conditions] that Mr. Markmann had identified at his last inspection of [Respondent's] facility on January 25, 1994 [(CX 3 at 2)]. At the October [5, 1994,] inspection, Mr. Markmann identified the following [conditions] as not complying with [the] Standards relating to housekeeping, food storage, enclosures, record keeping, cleaning, and veterinary care: Food was not stored away from the wall so as to allow for cleaning and some food was spilled on the floor [(CX 3 at 2; Tr. 19)]; one dog enclosure had a 4 1/2 -inch by 4 1/2 -inch hole on its floor and a hole of an unspecified dimension on the top, but the report did not indicate whether there were any sharp points that would constitute a danger to the animals [(CX 3 at 2; Tr. 19-20)]; excreta were not being cleaned on a daily basis from the cages [(CX 3 at 2; Tr. 20)]; "supplies, boxes, etc." were stored on top of . . . enclosure[s (CX 3 at 3; Tr. 21-22)]; puppies that were still with their mother, but which "should have been weaned a long time ago," [(Tr. 61)] were not identified [(CX 3 at 3; Tr. 22)]; the records for "some" of the adult dogs were not [complete] . . . [(CX 3 at 3; Tr. 22-23)]; and appropriate medical treatment was not being provided to a Cairn Terrier which had a "greenish discharge in both eyes" [(CX 3 at 3; Tr. 23-24)].

Mr. Markmann conducted a follow-up inspection on November 15, 1994. He found that the holes in the cage had not been repaired [(CX 4 at 2; Tr. 28-29)]; that the cages still contained an excessive accumulation of excreta and that they needed to be sanitized at least once every two weeks [(CX 4 at 2; Tr. 29-30)]; that supplies and materials had not been removed from the tops of enclosures [(CX 4 at 3; Tr. 30)]; that some of the dogs were not properly identified [(CX 4 at 3; Tr. 30-31)] and that records were not adequately maintained [(CX 4 at 3; Tr. 30-31)]; that the Cairn Terrier with the eye discharge had not received veterinary care and that another dog with matted hair needed to be groomed [(CX 4 at 3; Tr. 32- 33)]. He also found that water . . . was [not adequately drained from] in front of the enclosures [(CX 4 at 2; Tr. 28)].

Mr. Markmann asked his supervisor, Mary Geib, a doctor of veterinary medicine, to accompany him on his reinspection on December 20, 1994 [(Tr. 33-34)]. However, they did not conduct the inspection because Respondent was not home [(Tr. 34)]. They then proceeded about 9:30 a.m. to a facility operated by Respondent's brother, Ervin, to conduct an inspection [(Tr. 70, 76)]. Ervin, however, was leaving as they arrived [(Tr. 70, 76-77)]. Mr. Markmann and Dr. Geib told Ervin that they would return later, but did not return that day [(Tr. 77)].

On January 23, 1995, Mr. Markmann and Dr. Geib returned to Respondent's facility at about 9:15 a.m. to conduct an inspection [(Tr. 36)]. They arrived just as Respondent was preparing to leave in his buggy to help work on his father-in-law's house. Mr. Markmann and Dr. Geib asked Respondent to delay his departure until after they conducted their inspection. Respondent declined. He said he had made a commitment to help his father-in-law that day and that "suddenly you were asking me to drop all my commitments. This wouldn't be a problem if I hadn't known that inspections take up to a half a day." (Tr. [99-] 100.) Respondent told them to make an appointment. They replied that they had the right to make unannounced inspections and suggested that Respondent's wife accompany them on their inspection. Respondent told them that she could not accompany them because she had to care for her small children. Respondent also made some comment about seeing them "in court." Mr. Markmann and Dr. Geib then [completed an inspection report which cites] Respondent for refusing [to allow APHIS officials to conduct] an inspection [(CX 5; Tr. 34-39, 91, 126)].

*11 After reflecting on the matter, Respondent "realized I am not one to go to court. I wanted to work with my inspector." (Tr. 100.) Respondent then called Mr. Markmann the next day and, when he was unable to reach Mr. Markmann, left a message on his answering machine, giving the dates he would be available for an inspection [(CX 6 at 2; Tr. 39, 41)]. Mr. Markmann and Dr. Geib conducted an inspection a week later on January 31[, 1995 (Tr. 39)]. They found that many of the noncompliant [conditions] identified at the previous inspections had been corrected, including the problem with the daily cleaning of excreta, and that Respondent's housekeeping had improved [(CX 6 at 2)]. They also found that a holding pen door would not stay closed [(CX 6 at 2; Tr. 42)]; that a shelter box had protruding nails, a condition which Respondent corrected during the inspection [(CX 6 at 2; Tr. 42)]; that supplies were still being stored above the pens [(CX 6 at 2-3; Tr. 43)]; that some piles of empty feed bags were in the animal area [(CX 6 at 2; Tr. 43)]; that two litters of large puppies were still being housed with their mother without being identified . . . [(CX 6 at 3; Tr. 43-44)]; that some records were not complete and that the records did not accurately reflect the number of dogs at the facility [(CX 6 at 3; Tr. 44)]; that there were no medical records on the Cairn Terrier, which had been euthanized [(CX 6 at 3; Tr. 44)]; that one [Yorkie female] had untrimmed toe nails [(CX 6 at 3; Tr. 45)]; and that medicine bottles were dusty, with one bottle not being stored at the required temperature [(CX 6 at 3; Tr. 45)].

Mr. Markmann testified that, of the noncompliant [conditions] he found during this 4-month inspection period (October 1994 through January 1995), two of the [conditions], failure to provide adequate veterinary care and excreta build-up, constitute "serious" violations: that is, [conditions] that directly affected the health and [well-being] of the animals [(Tr. 21, 23-24, 29-30, 32-33, 82- 85)]. He said the other identified noncompliant [conditions], while not serious, were nevertheless "significant" in that they constitute violations of the Regulations and Standards [(Tr. 19, 21-23, 28-29, 42-43, 82-85)].

Discussion

I. Jurisdiction

Complainant states in Complainant's Brief that Respondent admitted in his Answer and at the hearing that [the Secretary] has jurisdiction in this proceeding [(Complainant's Brief at 12)]. . . . [T]he record contains no such admission. [However,] the Animal Welfare Act provides that "animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof . . ." (7 U.S.C. § 2131)[, and the record clearly establishes that Respondent has animals and engages in activities that are regulated under the Animal Welfare Act]. . . .

. . . [Footnote 1 omitted.] Accordingly, I find that . . . the Secretary has jurisdiction over Respondent's facility.

*12 II. Noncompliance

Mr. Markmann testified that [on October 5, 1994,] Respondent's food storage did not comply with section 3.1(e) of the Standards (9 C.F.R. § 3.1(e)). The storage did not, as required, allow for adequate cleaning and the spilled food could attract pests. I find that [Respondent's manner of storing food on October 5, 1994,] constitutes a violation [of section 3.1(e) of the Standards (9 C.F.R. § 3.1(e))].

Mr. Markmann's finding that [on October 5, 1994, and November 15, 1994,] Respondent did not clean excreta from the enclosures on a daily basis as required by the [section 3.11(a) of the] Standards (9 C.F.R. § 3.11(a)) is likewise affirmed. . . . [However, there is no basis for finding that on January 31, 1995, Respondent did not remove excreta from primary enclosures daily as alleged in paragraph V(D)(1) of the Complaint. Therefore, paragraph V(D)(1) of the Complaint is dismissed.]

The holes in the cage [found during the October 5, 1994, and November 15, 1994, inspections of Respondent's premises] did not comply with the requirement that enclosures be kept in good repair (9 C.F.R. § 3.6(a)(1)). The [two shelter boxes found during the January 31, 1995, inspection to have] protruding nails [did not comply with] section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1)) and constitute a violation of the Standards] even though promptly corrected by Respondent. In re Pet Paradise, Inc., 51 Agric. Dec. 1047 (1992)[, aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2))].

The failures to provide adequate veterinary care for the Cairn Terrier[, which was found during the October 5, 1994, and November 15, 1994, inspections] with the eye discharge, are violations of 9 C.F.R. § 2.40. [Further, Respondent's failure to groom the black scottie, which was found during the November 15, 1994, inspection, and Respondent's failure to trim the nails of a Yorkie female, which was found during the January 31, 1995, inspection, constitute failures to provide adequate veterinary care in violation of 9 C.F.R. § 2.40.]

The [evidence also establishes that on November 15, 1994, Respondent failed to provided an adequate drainage system in violation of section 3.1(f) of the Standards] (9 C.F.R. § 3.1(f)), [and] water leak[ing from automatic waterers was not rapidly removed from housing facilities].

Mr. Markmann found [on November 15, 1994, and January 31, 1995,] that the failure to identify puppies did not comply with the requirement that animals be separately identified ([7 U.S.C. § 2141;] 9 C.F.R. § 2.50(a)(1)). However, section 2.50(d) [of the Regulations (9 C.F.R. § 2.50(d))] provides that unweaned puppies do not have to be individually identified "while they are maintained as a litter with their dam in the same primary enclosure. . . ." Mr. Markmann conceded that . . . the puppies were maintained with their mother, but argued that they were big enough to have been weaned and "should have been weaned a long time ago." (Tr. 61.) I find that Complainant has failed to show that these puppies, regardless of their size, were in fact weaned. The puppies therefore did not have to be individually identified[, and paragraphs III(C) and V(C) of the Complaint are dismissed].

*13 As for Respondent's failure to maintain complete records . . ., Mr. Markmann testified that the APHIS form that he found that Respondent did not maintain . . . [was not required to be used] until [at least] April 1995, . . . after the period of inspections involved in this proceeding (Tr. 122-23). . . . Nevertheless, as Mr. Markmann contended, [section 2.75(a)(1) of the] Regulations [(9 C.F.R. § 2.75(a)(1))] did contain record keeping requirements at the time of Mr. Markmann's inspections, and Respondent was required to comply with them even though [there was no requirement at the time of the inspections material to this proceeding that Respondent keep information on a particular APHIS form]. Respondent's failure[s, on October 5, 1994, November 15, 1994, and January 31, 1995,] to maintain complete records [are] violation [s] of [section 10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the Regulations] (9 C.F.R. § 2.75(a)(1)).

[On October 5, 1994, and November 15, 1994,] Mr. Markmann found that supplies [and materials] stored on top of . . . enclosure[s to be in] violation of [section 3.11(c) of the Standards] (9 C.F.R. § 3.11(c)). This Standard, however, prohibits [accumulations] on the premises only of "trash, junk, waste products, and discarded matter." As the stored [supplies and] material w[ere] not shown to constitute any of these prohibited matters, Respondent was not in violation of section 3.11(c) [of the Standards (9 C.F.R. § 3.11(c)) on October 5, 1994, and November 15, 1994, and paragraphs II(C)(4) and III(D)(2) of the Complaint are dismissed. However, Mr. Markmann found that Respondent did leave, inter alia, empty feed bags in animal areas on January 31, 1995, and I find that Respondent's housekeeping did not comply with section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)) on January 31, 1995.]

Mr. Markmann cited Respondent for refusing an inspection on January 23, 1995. . . . [Section 2.126 of the Regulations (9 C.F.R. § 2.126)] provides that dealers shall, during business hours, allow APHIS officials to conduct inspections, and provides for no exceptions. Thus, a refusal for any reason to allow an APHIS official to conduct an inspection constitutes a violation. Although some agencies cannot conduct unannounced, warrantless searches, Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), [section 16(a) of the Animal Welfare Act (7 U.S.C. § 2146(a)) specifically provides that the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and those records required to be kept pursuant to 7 U.S.C. § 2140 of any dealer subject to 7 U.S.C. § 2142, and] it is the Secretary's position that [unannounced, warrantless] searches are permitted under the Animal Welfare Act. In re Craig Lesser, 52 Agric. Dec. 155, 168 (1993)[, aff'd, 34 F.3d 1301 (7th Cir. 1994)].

. . . Respondent's [January 23, 1995,] refusal to allow an inspection was a violation of the requirement that he permit . . . unannounced inspection[s] of his facility at any time during business hours that an [APHIS] inspector selects.

*14 III. Sanction

It is the Secretary's policy that "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 recommendation of the administrative officials charged with the responsibility for achieving the congressional purpose." 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)].

[Four] of Respondent's violations, [the October 5, 1994, and November 15, 1994, failures to provide adequate veterinary care] and failure[s] to [remove excreta from primary] enclosures every day . . . directly [affected the health and well-being] of animals, which is [one of] the principal remedial purpose[s] of the Animal Welfare Act. The remaining violations, while significant, were not considered serious. As for the dog[s] in need of veterinary care, [they] constituted [approximately] one percent of the animals at Respondent's facility, and the inspector's January 31, 1995, report indicates that the excreta cleaning problem had been corrected. Respondent's refusal to allow an inspection was also a serious matter even though occurring only on one occasion. However, Respondent apparently acted in the heat of the moment because of a previous commitment and not in defiance of the law since, on reflection, he promptly called the [APHIS] inspector to arrange for an inspection. . . .

Considering all the circumstances, I find appropriate [the issuance of an order: (1) directing Respondent to cease and desist from violation of the Animal Welfare Act and the Regulations and Standards; (2) suspending Respondent's license under the Animal Welfare Act for 40 days; and (3) assessing Respondent a civil] penalty of $[7,]500.

Findings of Fact

1. Respondent, Samuel Zimmerman, is an individual whose address is 701 East Metzler Road, Ephrata, Pennsylvania 17522 [(CX 3-7A)].

2. Respondent was licensed and operating as a dealer as defined in the Animal Welfare Act and the Regulations at all times material [to this proceeding (CX 7, 7A; Tr. 13)].

3. On October 5[, 1994,] November 15, 1994, and January 31, 1995, Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals [(CX 3 at 3, CX 4 at 3, CX 6 at 3; Tr. 22-23, 31-32, 44)].

[4. On October 5, 1994, November 15, 1994, and January 31, 1995, Respondent] failed to keep primary enclosures in good repair [(CX 3 at 2, CX 4 at 2, CX 6 at 2; Tr. 19-20, 28-29, 42)].

[5]. On October 5[, 1994,] and November 15, 1994, Respondent failed to remove excreta from primary enclosures on a daily basis [(CX 3 at 2, CX 4 at 2; Tr. 20, 29-30)].

[6. On October 5, 1994, November 15, 1994, and January 31, 1995, Respondent] failed to provide adequate veterinary care for . . . animal[s] in need of such care [(CX 3 at 3, CX 4 at 3, CX 6 at 3; Tr. 23-24, 32-33, 45)].

*15 [7. On October 5, 1994, Respondent] failed to store food in a manner to allow proper cleaning and to prevent infestation [(CX 3 at 2; Tr. 19)].

[8.] On November 15, 1994, Respondent failed to provide for the adequate drainage of water from a housing facility [(CX 4 at 2; Tr. 28)].

[9]. On January 23, 1995, Respondent failed to allow APHIS officials to inspect his facility [(CX 5; Tr. 34-39)].

[10. On January 31, 1995, Respondent failed to keep premises where housing facilities were located clean and in good repair to protect animals from injury, to facilitate husbandry practices, and to reduce or eliminate breeding and living areas for rodents and other pests and vermin (CX 6 at 2; Tr. 43).]

. . . .

Conclusions of Law

[1. On October 5, 1994, Respondent willfully violated:

a. section 10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the Regulations (9 C.F.R. § 2.75(a)(1)) by failing to maintain complete records showing the acquisition, disposition, and identification of animals;

b. section 2.40 of the Regulations (9 C.F.R. § 2.40) by failing to provide veterinary care to an animal in need of care;

c. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.1(e) of the Standards (9 C.F.R. § 3.1(e)) by failing to store supplies of food in a manner so as to protect them from spoilage, contamination, and vermin infestation;

d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1)) by failing to ensure that primary enclosures for dogs were structurally sound and maintained in good repair; and

e. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.11(a) of the Standards (9 C.F.R. § 3.11(a)) by failing to remove excreta from primary enclosures on a daily basis in order to prevent soiling of dogs and to reduce disease hazards, insects, pests, and odors.

2. On November 15, 1994, Respondent willfully violated:

a. section 10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the Regulations (9 C.F.R. § 2.75(a)(1)) by failing to maintain complete records showing the acquisition, disposition, and identification of animals;

b. section 2.40 of the Regulations (9 C.F.R. § 2.40) by failing to provide veterinary care to animals in need of care;

c. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.11(a) of the Standards (9 C.F.R. § 3.11(a)) by failing to remove excreta from primary enclosures on a daily basis in order to prevent soiling of dogs and to reduce disease hazards, insects, pests, and odors;

d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1)) by failing to ensure that primary enclosures for dogs were structurally sound and maintained in good repair; and

e. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)) by failing to provide for the regular and frequent collection, removal, and disposal of animal wastes and other fluids and wastes in a manner that minimizes contamination and disease risks.

*16 3. On January 23, 1995, Respondent willfully violated section 16(a) of the Animal Welfare Act (7 U.S.C. § 2146(a)) and section 2.126 of the Regulations (9 C.F.R. § 2.126) by refusing to allow Animal and Plant Health Inspection Service officials to inspect his premises during business hours.

4. On January 31, 1995, Respondent willfully violated:

a. section 10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the Regulations (9 C.F.R. § 2.75(a)(1)) by failing to maintain complete records showing the acquisition, disposition, and identification of animals;

b. section 2.40 of the Regulations (9 C.F.R. § 2.40) by failing to provide veterinary care to an animal in need of care;

c. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)) by failing to keep premises where housing facilities were located clean and in good repair to protect animals from injury, to facilitate husbandry practices, and to reduce or eliminate breeding and living areas for rodents and other pests and vermin; and

d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1)) by failing to ensure that primary enclosures for dogs were structurally sound and maintained in good repair.]

. . . .

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Complainant raises five issues in Complainant's Appeal Petition.

First, Complainant contends that:

Although the Administrative Law Judge correctly found that the Secretary has jurisdiction (p. 6), he also found that the "respondent is engaged in purely intrastate activities." This finding and the related discussion (p. 5) are in error and are likely to cause confusion.

Complainant's Appeal Petition at 1.

Section 1(b) of the Animal Welfare Act provides:

§ 2131. Congressional statement of policy

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

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

(2) to assure the humane treatment of animals during transportation in commerce; and

(3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen.

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

*17 7 U.S.C. § 2131.

Congress has declared that the entire class of activities described in the Animal Welfare Act is in interstate or foreign commerce, substantially affects interstate or foreign commerce, or substantially affects the free flow of interstate or foreign commerce. Respondent's activities as a dealer fall within the activities described in the Animal Welfare Act, and Respondent repeatedly made application for and was granted an Animal Welfare Act license (CX 7, 7A). Further, Respondent concedes that the ALJ "appropriately . . . found that the Secretary has jurisdiction by virtue of the Animal Welfare Act." (Respondent's Memorandum in Opposition to Appeal Petition at 1.)

The ALJ's determination that "[R]espondent is engaged in purely intrastate activities" (Initial Decision and Order at 5) is irrelevant because the ALJ also found that Respondent's activities substantially affect commerce and that the Secretary has jurisdiction over Respondent's facility (Initial Decision and Order at 5-6). I have, therefore, modified the Initial Decision and Order to eliminate confusion that Complainant contends is likely to be caused by the ALJ's discussion of the nature of Respondent's activities as they relate to commerce and intrastate activities.

Complainant also states that the ALJ's "erroneous view that jurisdiction was "'marginal' may have let [sic] to an erroneous view of the sanctions appropriate in this case." (Complainant's Memorandum in Support of Appeal Petition at 2.) I find nothing in the Initial Decision and Order or in any other part of the record to indicate that the sanction imposed by the ALJ was in any way related to the ALJ's discussion regarding jurisdiction.

Second, Complainant contends that:

Although the ALJ correctly found that the respondent failed to keep required records (p. 7), he also found that they may not have been previously enforced. This is in error and likely to cause confusion.

Complainant's Appeal Petition at 1.

Further, Complainant states that "[C]omplainant regrets having contributed to the confusion on this issue. An [APHIS] investigator[, Mr. Markmann,] erred when he testified that the use of a certain APHIS recordkeeping form became mandatory in April 1995 and that 'we didn't actually start enforcing that law until October 1st '95. . . .' (TR 122)." (Complainant's Memorandum in Support of Appeal Petition at 3.)

While Mr. Markmann's testimony on the issue of recordkeeping requirements is not the mirror of clarity, I find that Mr. Markmann's testimony supports a finding that the recordkeeping requirements in section 10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(a)(1) of the Regulations (9 C.F.R. § 2.75(a)(1)) were in effect and enforced at all times material to this proceeding as follows:

[BY MS. HANSBERRY:]

Q. Okay, there was also testimony about the recordkeeping requirements with Form 7005.

Are you familiar with that form?

*18 [BY MR. MARKMANN:]

A. Yes.

Q. What is that?

A. 7005 is a record of dogs and cats on hand. That became mandatory, that particular form became mandatory with a rule change that went into effect in April of '95. We actually didn't start enforcing that law until October 1st of '95.

Q. Okay.

A. Prior to that period you had to still -- you were still required to keep that information. You didn't have to use the USDA form. The record requirement, the 2.75 record requirement has been there for years.

Q. Okay.

A. I have been inspecting for 11 years. It's always been there.

Q. So under 2.75, licensees have always been required to keep the same kinds of information?

A. They have been required to keep the name and address of who they get the animal from. It's listed in 2.75.

Q. It's all in the reg?

A. Yes.

Q. Okay.

A. The only part of that regulation, if you have a copy of the regulations in front of you, the only part that has changed in the last year or so is where it says 2.75, It's (a)(2).

In the current regulations once they change the book, they will rewrite that. But under (a)(2), it says, "Records of dogs on hand," the book still mentions the old form, "the BS Form 18-5 and record of disposition of dogs and cats, BS Form 18-6," those records are now called 7005 and 7006, "are forms which may be used by dealers and exhibiters [sic] to maintain this information required by the paragraphs of this section.

The way the law reads now is they must keep those forms.

Q. That USDA Form 7005 and 7006?

A. Yes.

Q. But it does not require any information which is different than that which was formerly required?

A. Exactly.

Tr. 122-24.

I agree with the ALJ's conclusion that on October 5, 1994, November 15, 1994, and January 31, 1995, Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals in violation of section 2.75(a)(1) of the Regulations (9 C.F.R. § 2.75(a)(1)) as alleged in paragraphs II(A), III(A), and V(A) of the Complaint. Based on Mr. Markmann's testimony, I have modified the Initial Decision and Order to eliminate confusion that Complainant contends is likely to be caused by the ALJ's reference to the date on which the "law" was enforced.

Third, Complainant contends that:

Although the ALJ correctly found that the respondent refused to allow an inspection (pp. 8-9), the discussion contains the erroneous statement that "it is within an inspector's discretion not to cite a party for a refusal to allow an inspection" (p. 8), which is likely to cause confusion.

Complainant's Appeal Petition at 1.

I infer that the ALJ was prompted to state that APHIS inspectors have discretion not to cite a party for a refusal to allow an APHIS official to inspect facilities based upon the ALJ's perception that Mr. Markmann did not cite another dealer, Respondent's brother, Ervin, for conduct that the ALJ believes was similar to Respondent's January 23, 1995, refusal to allow inspection. However, the record establishes that Mr. Markmann did not cite Respondent's brother for refusing to allow inspection, because Mr. Markmann did not find that Respondent's brother refused to allow APHIS officials to inspect, as follows:

*19 [BY MR. ZIMMERMAN:]

Q. Did you do this -- didn't -- did you go to, Ervin, my brother's place, after you left my place?

[BY MR. MARKMANN:]

A. Which date?

Q. I ain't quite sure which day no more. Same day, same day that you were at my place when I wasn't home.

A. I'm not sure what date you are referring to.

Q. I wasn't home. Then you went from my place to Ervin's place; isn't this correct?

A. I think you might be referring to a December 20, 1994, inspection that you were home. We went there in the morning. You were not home. We went back in the afternoon and you were not home. And we filled out that type a [sic] report at that time.

Q. Did you fill out an attended [sic] report at my brother's place?

A. He was home, and he was leaving, I believe, when we got there, shortly -- it was around 9:30. He had a driver there, and he was delivering, I think he had bundles of tobacco stalks, and he said he would be back in about an hour or two. Dr. Geib and I said we will try to get back, but we went on to do another inspection. And after doing that inspection, we went back to your facility to try to see you since you had some "D" items.

Q. Did you cite him for this refusal?

A. I don't believe he was because we didn't get back. He said he would be back in an hour or two, and we didn't get back that day because we had other commitments.

Tr. 70-71.

On the other hand, Mr. Markmann described Respondent's conduct when he, Mr. Markmann, and Dr. Geib arrived to inspect Respondent's facility on January 23, 1995, as a refusal to allow inspection as follows:

BY MS. HANSBERRY:

Q. Can you just describe what happened when you and Dr. Geib attempted to inspect and were refused inspection on January 23, 1995?

[BY MR. MARKMANN:]

A. When Dr. Geib and I arrived at approximately 9:15 a.m., Samuel Zimmerman was present, and said that he was going to his father-in-law[']s. He had no time for us. And the second page [of CX 5] explains the narrative that we had before we filled out the report; the exchange that Mr. Zimmerman and we had.

And I mention on page 2 that "On January 23rd of '95, at 9:15 a.m., Samuel S. Zimmerman, License No. 23A076, refused to allow APHIS officials to conduct a reinspection of his facilities, animals and records. This is in violation of Section 2.126. When Dr. Mary Geib and myself, Robert Markmann, arrived on the premise, Samuel Zimmerman was getting ready to leave. We requested to [sic] a reinspection and Mr. Zimmerman said he had no time, and we could settle the matter in court. Dr. Geib told Mr. Zimmerman that we were trying to work with him, and asked whether there was any particular days or times he would be available. Mr. Zimmerman responded that we needed to make an appointment. He claimed he was very busy. He said that he would be away this week working at his father-in-law's house. He also said that he would be busy working on is [sic] father's new house and his brother's calf barn.

*20 "We informed Samuel Zimmerman that inspections were unannounced. We mentioned that we previously attempted to do a reinspection. Samuel Zimmerman was aware of our previously attempted inspection. We asked Mr. Zimmerman if he could delay his departure so that we could conduct an inspection. Mr. Zimmerman said no. We also asked if Mrs. Zimmerman could accompany us on the inspection since she was remaining at home. Again Mr. Zimmerman said no.

"Mr. Zimmerman was informed that we would have to write up this report as a refusal to allow inspection. Again, Samuel Zimmerman mentioned that the matter could be settled in court."

And he left so we didn't have him sign the report.

Q. Okay. So this was a refusal to allow inspection under Regulation 2.126?

A. Yes.

Tr. 36-38.

The record establishes that there were material differences between Respondent's brother's conduct on December 20, 1994, and Respondent's conduct on January 23, 1995. The record also establishes that Mr. Markmann believes that Respondent's conduct on January 23, 1995, constitutes a refusal to allow inspection and that Respondent's brother's conduct on December 20, 1994, does not constitute a refusal to allow inspection.

Mr. Markmann exercised discretion. However, the discretion exercised by Mr. Markmann was not that of deciding to cite only one of two persons who Mr. Markmann viewed as having refused to allow inspection, but rather, that of determining whether particular conduct constitutes a refusal to allow inspection. Since there is no evidence on this record to indicate that Mr. Markmann used discretion "not to cite a party for a refusal to allow an inspection," I have modified the Initial Decision and Order by eliminating the ALJ's reference to "an inspector's discretion not to cite a party for a refusal to allow an inspection[.]"

Fourth, Complainant contends that:

The ALJ erred in not considering testimony that the respondent had been "'noncompliant' for two years" on the grounds that the "period involved in this proceeding relates to only four months" (p. 8). Although prior noncompliance was not charged in the complaint, the history is relevant to the context of the violations and appropriate sanctions.

Complainant's Appeal Petition at 1-2.

I disagree with Complainant's contention that the ALJ did not consider testimony that Respondent had been noncompliant for 2 years. The ALJ, citing Mr. Markmann's testimony (Tr. 14), specifically states that "Markmann also complained that respondent had been 'noncompliant' for two years." (Initial Decision and Order at 8.)

The ALJ found, and I agree, that the record does not support Mr. Markmann's assertion (Initial Decision and Order at 8). Mr. Markmann testified as follows:

[BY MS. HANSBERRY:]

Q. And how would you described [sic] [Respondent's] attitude towards complying with the standards and the regulations?

[BY MR. MARKMANN:]

A. I'd say he's noncompliant for the last couple of years. He's been noncompliant for the last two years.

*21 Tr. 14.

As an initial matter, I note that neither the Animal Welfare Act nor the Regulations and Standards specifically addresses "attitude towards complying with the [S]tandards and [R]egulations." Further, Mr. Markmann testified on January 29, 1997. Therefore, Mr. Markmann characterized Respondent as "noncompliant" during the period January 29, 1995, through January 29, 1997. The Complaint was filed on February 22, 1996, and the only violations that Respondent is alleged to have committed between the time Respondent is alleged to have begun being "noncompliant" and the time of the filing of the Complaint are those which are alleged to have occurred on January 31, 1995 (Compl. ¶ V).

The Animal Care Inspection Report prepared and signed by Mr. Markmann and signed by Dr. Geib after their January 31, 1995, inspection of Respondent's premises states that Respondent had corrected some of the conditions found to be in violation of the Animal Welfare Act and the Regulations and Standards during the previous inspection and corrected one of the newly discovered violations during the January 31, 1995, inspection (CX 6 at 2). Moreover, there is nothing in this record, other than Mr. Markmann's assertion, to support a finding that Respondent was "noncompliant" after January 31, 1995.

Fifth, Complainant contends that:

The ALJ erred in appraising the seriousness of the violations and in rejecting the sanctions recommended by the complainant.

Complainant's Appeal Petition at 2.

I agree with Complainant that the sanction imposed by the ALJ against Respondent, a cease and desist order and a $500 civil penalty, is not appropriate under the circumstances in this case.

As to the appropriate sanction, section 19 of the Animal Welfare Act provides:

§ 2149. Violations by licensees

(a) Temporary license suspension; notice and hearing; revocation

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) Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order

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.

*22 7 U.S.C. § 2149(a), (b).

The Department's 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):

[T]he 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.

The number of animals under Respondent's care ranges from about 95 to 143 (Tr. 15), and Respondent grosses from $15,000 to $25,000 a year from the sale of the animals (CX 7, 7A). The annual licensing fee regulations (9 C.F.R. § 2.6) classify dealers by the gross amount received from the sale of animals. Applying this regulatory scheme to Respondent's business, I find that Respondent has a medium-size business.

I find that Respondent violated the Animal Welfare Act and the Regulations and Standards 15 times during the period October 5, 1994, through January 31, 1995. Four of Respondent's violations, Respondent's failures to provide adequate veterinary care, and failures to remove excreta from primary enclosures on October 5, 1994, and November 15, 1994, constitute "serious" violations in that they directly affected the health and well-being of Respondent's animals (Tr. 21, 23-24, 29-30, 32-33, 82-85). Moreover, Respondent's refusal to allow APHIS officials to inspect his facility is a serious violation in that the refusal to allow inspection prevents APHIS from ensuring that the requirements of the Animal Welfare Act and the Regulations and Standards are being met. Respondent's 10 other violations, while not "serious," are "significant" in that they constitute violations of the Regulations and Standards which could have affected the health and well-being of animals under certain circumstances (Tr. 19, 21-23, 28-29, 42-43, 82-85).

Respondent has been a licensed dealer since 1991 and was a licensed dealer at all times pertinent to this proceeding (Tr. 13, 98). Respondent was fully aware of the Animal Welfare Act and the Regulations and Standards. The Animal Welfare Act is published in the statutes at large and the United States Code, and Respondent is presumed to know the law. [FN2] The Regulations and Standards are published in the Federal Register, thereby constructively notifying Respondent of the Regulations and Standards. [FN3] Further, Respondent received copies of the Regulations and Standards annually and agreed in writing to comply with them (CX 7, 7A). Moreover, Respondent accompanied the APHIS inspector during the October 5, 1994, November 15, 1994, and January 31, 1995, inspections of his premises, and the APHIS inspector discussed the violations cited on each report with Respondent (Tr. 14, 18-19, 27, 42) and provided a copy of each inspection report to Respondent (CX 3, 4, 6). Further still, during the January 23, 1995, attempt to inspect Respondent's facility, Respondent was informed that, if he persisted in his refusal to allow inspection, he would be cited in the APHIS inspector's report for a refusal to allow inspection (Tr. 36-38). Despite Respondent's actual and constructive knowledge of the Animal Welfare Act and the Regulations and Standards, he continued to violate the Animal Welfare Act and the Regulations and Standards.

*23 There is no evidence that Respondent deliberately harmed his animals. However, Respondent repeatedly and willfully violated the Animal Welfare Act and the Regulations and Standards. [FN4] Proof of Respondent's willful violations of the Animal Welfare Act and the Regulations and Standards is not necessary for the revocation or suspension of Respondent's Animal Welfare Act license because Respondent received notice by APHIS in writing of the facts or conduct that may warrant suspension or revocation of his license, and Respondent had an opportunity to achieve compliance with the requirements of the Animal Welfare Act and the Regulations and Standards (CX 3, 4, 6). [FN5] Nevertheless Respondent's willfulness is relevant to the gravity of Respondent's violations.

Complainant could have sought a maximum civil penalty of $2,500 for each violation. [FN6] In light of the amount that Complainant could have requested, the number of violations, the number of repeated violations, and the serious nature of five of the violations, the sanction recommended by Complainant is appropriate.

However, I find that Complainant did not prove by a preponderance of the evidence [FN7] 5 of the 20 violations which Complainant alleged in the Complaint. I find that Respondent corrected a number of the cited violations either during the inspection in which the violations were cited or prior to the next inspection. [FN8] With respect to Respondent's refusal to allow inspection, I agree with the ALJ that Respondent apparently acted in the heat of the moment because of a previous commitment and not in defiance of the law since, on reflection, he promptly called the inspector to arrange for an inspection.

Therefore, I am assessing Respondent a civil penalty of $7,500 and suspending Respondent's Animal Welfare Act license for a period of 40 days. Finally, I believe that Respondent should be ordered to cease and desist from further violations of the Animal Welfare Act and the Regulations and Standards.

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

Order

1. Respondent, Samuel Zimmerman, is assessed a civil penalty of $7,500. The penalty shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded to:

Robert A. Ertman

United States Department of Agriculture

Office of the General Counsel

Marketing Division

Room 2014 South Building

1400 Independence Avenue, S.W.

Washington, DC 20250-1413

Respondent's payment of the civil penalty shall be forwarded to and received by Mr. Ertman within 70 days after service of this Order on Respondent. The certified check or money order should indicate that payment is in reference to AWA Docket No. 96-0021.

2. Respondent, Samuel Zimmerman, his agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act, and, in particular, shall cease and desist from:

*24 (a) failing to maintain complete records showing the acquisition, disposition, and identification of animals;

(b) failing to provide veterinary care to animals in need of care;

(c) failing to store supplies of food in a manner so as to protect them from spoilage, contamination, and vermin infestation;

(d) failing to provide primary enclosures for dogs that are structurally sound and maintain primary enclosures for dogs in good repair so as to protect the animals from injury;

(e) failing to remove excreta from primary enclosures daily in order to prevent soiling of the animals and to reduce disease hazards, insects, pests, and odors;

(f) failing to keep premises where the housing facilities are located clean and in good repair to protect animals from injury, to facilitate husbandry practices, and to reduce or eliminate breeding and living areas for rodents and other pests and vermin;

(g) failing to make provisions for the regular and frequent collection, removal, and disposal of animal wastes and other fluids and wastes in a manner that minimizes contamination and disease risks; and

(h) failing to allow Animal and Plant Health Inspection Service officials entry to inspect his facility.

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

3. Respondent's Animal Welfare Act license is suspended for a period of 40 days and continuing thereafter until Respondent demonstrates to the Animal and Plant Health Inspection Service that he is in full compliance with the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act, and this Order, including payment of the civil penalty assessed in this Order. When Respondent demonstrates to the Animal and Plant Health Inspection Service that he has satisfied the conditions in this paragraph of this Order, a Supplemental Order will be issued in this proceeding upon the motion of the Animal and Plant Health Inspection Service, terminating the suspension of Respondent's Animal Welfare Act license after the expiration of the 40-day license suspension period.

The Animal Welfare Act license suspension provisions in this Order shall become effective on the 70th day after service of this Order on Respondent.

FNa1 Section 11 of the Animal Welfare Act (7 U.S.C. § 2141) requires the marking and identification of certain animals. Based on the facts alleged in paragraph IV(A) of the Complaint and the provision of the Regulations cited in paragraph IV(A) of the Complaint, it appears that Complainant cited the incorrect section of the Animal Welfare Act in paragraph IV(A) of the Complaint.

FNaa1 On March 18, 1997, Frank Martin, Jr., Esq., entered an appearance on behalf of Complainant, replacing Denise Y. Hansberry, Esq. (Notice of Appearance filed Mar. 18, 1997). On June 18, 1997, Robert A. Ertman, Esq., entered an appearance on behalf of Complainant, replacing Frank Martin, Jr. (Notice of Appearance filed June 18, 1997).

FNaaa1 On July 21, 1997, Eugene R. Campbell, Esq., entered an appearance on behalf of Respondent (July 17, 1997, Letter from Eugene R. Campbell, Esq., to USDA - Hearing Clerk).

FNaaaa1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g); section 4(a) of Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219, 3221 (1953), reprinted in 5 U.S.C. app. § 4(a) at 1491 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. § 6912(a)(1)).

FN2 See generally Atkins v. Parker, 472 U.S. 115, 130 (1985); Wilber Nat'l Bank of Oneonta v. United States, 294 U.S. 120, 124 (1935); North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 (1925); Town of South Ottawa v. Perkins, 94 U.S. 260, 269 (1876); Upton v. Tribilcock, 91 U.S. 45, 50-51 (1875).

FN3 FCIC v. Merrill, 332 U.S. 380, 385 (1947); Bennett v. Director, Office of Workers' Compensation Programs, 717 F.2d 1167, 1169 (7th Cir. 1983); Diamond Ring Ranch, Inc. v. Morton, 531 F.2d 1397, 1405 (10th Cir. 1976).

FN4 An action is willful under the Administrative Procedure Act (5 U.S.C. § 558(c)) if a prohibited act is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. Toney v. Glickman, 101 F.3d 1236, 1241 (8th Cir. 1996); Cox v. United States Dep't of Agric., 925 F.2d 1102, 1105 (8th Cir.), cert. denied, 502 U.S. 860 (1991); Finer Foods Sales Co. v. Block, 708 F.2d 774, 777-78 (D.C. Cir. 1983); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 997 (1981); George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.) cert. denied, 419 U.S. 830 (1974); Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); Eastern Produce Co. v. Benson, 278 F.2d 606, 609 (3d Cir. 1960); In re Fred Hodgins, 56 Agric. Dec. ___, slip op. at 143-44 (July 11, 1997), appeal docketed, No. 97- 3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 476 (1997), appeal docketed, No. 97-3414 (3d Cir. Aug. 4, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 255-56 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 138 (1996); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1284 (1988); In re David Sabo, 47 Agric. Dec. 549, 554 (1988). See also Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187 n.5 (1973) ( ".Wilfully' could refer to either intentional conduct or conduct that was merely careless or negligent."); United States v. Illinois Central R.R., 303 U.S. 239, 242-43 (1938) ("In statutes denouncing offenses involving turpitude, .willfully' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, shows that it often denotes that which is .intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize .conduct marked by careless disregard whether or not one has the right so to act."') The United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Tenth Circuit define the word "willfulness," as that word is used in 5 U.S.C. § 558(c), as an intentional misdeed or such gross neglect of a known duty as to be the equivalent of an intentional misdeed. Capital Produce Co. v. United States, 930 F.2d 1077, 1079 (4th Cir. 1991); Hutto Stockyard, Inc. v. USDA, 903 F.2d 299, 304 (4th Cir. 1990); Capitol Packing Co. v. United States, 350 F.2d 67, 78-79 (10th Cir. 1965). Even under this more stringent definition, many of Respondent's violations would still be found willful.

FN5 The Administrative Procedure Act provides, with respect to license revocation and suspension, as follows:

§ 558 Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses

. . . .

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

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

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

5 U.S.C. § 558(c).

FN6 I find that Complainant proved its case by a preponderance of the evidence with respect to 15 violations alleged in the Complaint. Complainant could have sought to have assessed a maximum civil penalty of $2,500 for each of these 15 violations, for a total civil penalty of $37,500.

FN7 The proponent of an Order has the burden of proof in proceedings conducted under the Administrative Procedure Act (5 U.S.C. § 556(d)), and the standard of proof by which the burden of persuasion is met is the preponderance of the evidence standard. Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981). The standard of proof in administrative proceedings conducted under the Animal Welfare Act is preponderance of the evidence. In re Fred Hodgins, 56 Agric. Dec.___, slip op. at 5 n.*** (July 11, 1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 461 (1997), appeal docketed, No. 97-3414 (3d Cir. Aug. 4, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 169 n.4 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 109 n.3 (1996); In re Julian J. Toney, 54 Agric. Dec. 923, 971 (1995), aff'd in part, rev'd in part, and remanded, 101 F.3d 1236 (8th Cir. 1996); In re Otto Berosini, 54 Agric. Dec. 886, 912 (1995); In re Micheal McCall, 52 Agric. Dec. 986, 1010 (1993); In re Ronnie Faircloth, 52 Agric. Dec. 171, 175 (1993), appeal dismissed, 16 F.3d 409, 1994 WL 32793 (4th Cir. 1994), printed in 53 Agric. Dec. 78 (1994); In re Craig Lesser, 52 Agric. Dec. 155, 166 (1993), aff'd, 34 F.3d 1301 (7th Cir. 1994); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066-67 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)); In re Terry Lee Harrison, 51 Agric. Dec. 234, 238 (1992); In re Gus White, III, 49 Agric. Dec. 123, 153 (1990); In re E. Lee Cox, 49 Agric. Dec. 115, 121 (1990), aff'd, 925 F.2d 1102 (8th Cir.), reprinted in 50 Agric. Dec. 14 (1991), cert. denied, 502 U.S. 860 (1991); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1283-84 (1988); In re David Sabo, 47 Agric. Dec. 549, 553 (1988); In re Gentle Jungle, Inc., 45 Agric. Dec. 135, 146-47 (1986); In re JoEtta L. Anesi, 44 Agric. Dec. 1840, 1848 n.2 (1985), appeal dismissed, 786 F.2d 1168 (8th Cir.) (Table), cert. denied, 476 U.S. 1108 (1986).

FN8 Corrections are to be encouraged and may be taken into account when determining the sanction to be imposed. In re Fred Hodgins, 56 Agric. Dec.___, slip op. at 99 (July 11, 1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 269, 272-73 (1997) (Order Denying Petition for Reconsideration); In re John Walker, 56 Agric. Dec. 350, 367 (1997); In re Mary Meyers, 56 Agric. Dec. 322, 348 (1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 142 (1996); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1070 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)).

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