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

In re: DAVID M. ZIMMERMAN
United States
56 Agric. Dec. 433 (1997)


Case Details
Printable Version
Summary:   Purpose of sanctions is to deter respondent, as well as others, from committing same or similar violations.

Judge Initial Decision issued by Edwin S. Bernstein, 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 (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 (7 C.F.R. §§ 1.130- .151) (hereinafter the Rules of Practice), by filing a Complaint on July 6, 1994. On September 2, 1994, Respondent's Counsel, Christopher M. Patterson, Esq., filed an Answer to the Complaint on behalf of Respondent. On December 11, 1995, Respondent's Counsel filed a Motion to Withdraw Appearance, which motion Administrative Law Judge Edwin S. Bernstein (hereinafter ALJ) granted on December 18, 1995.

On December 21, 1995, Complainant filed an Amended Complaint which includes counts I-VI alleged in the July 6, 1994, Complaint and adds counts VII-XI. Respondent neither filed a timely Answer to the Amended Complaint nor objected to the filing of the Amended Complaint.

The Complaint and the Amended Complaint allege that David M. Zimmerman (hereinafter Respondent) willfully violated the Animal Welfare Act and the Regulations and Standards.

The ALJ presided over a hearing on March 7-8, 1996, in Lancaster, Pennsylvania. Denise Y. Hansberry, Esq., Office of the General Counsel, United States Department of Agriculture (hereinafter USDA), represented Complainant. Respondent appeared pro se. On May 30, 1996, Complainant filed Complainant's Proposed Findings of Fact, Conclusions of Law, and Brief in Support Thereof. Respondent filed a brief on June 3, 1996. On July 12, 1996, the ALJ issued an Initial Decision and Order directing Respondent to cease and desist from violating the Animal Welfare Act and the Regulations and Standards; assessing Respondent a civil penalty; and suspending Respondent's Animal Welfare Act license.

On August 12, 1996, Respondent appealed to, and requested oral argument before, the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in USDA's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). [FN1] On October 1, 1996, Complainant filed Complainant's Reply in Opposition to Respondent's Appeal (hereinafter Complainant's Reply). On October 3, 1996, the case was referred to the Judicial Officer for decision.

Respondent's request for oral argument before the Judicial Officer, which the Judicial Officer may grant, refuse, or limit (7 C.F.R. § 1.145(d)), is refused because the issues are not complex and are controlled by established precedents, and thus, oral argument would appear to serve no useful purpose.

Based upon a careful consideration of the record in this proceeding, I agree with the ALJ that Respondent willfully violated the Animal Welfare Act and the Regulations and Standards as alleged in the Amended Complaint. The Initial Decision and Order is affirmed and adopted as the final Decision and Order with deletions shown by dots, changes or additions shown by brackets, and trivial changes not specified. Additional conclusions by the Judicial Officer follow the ALJ's discussion.

*3 Complainant's exhibits are referred to as "CX"; Respondent's exhibits are referred to as "RX"; and the hearing transcript is referred to as "Tr."

Applicable Statutory Provisions, Regulations, and Standards

7 U.S.C.:

§ 2132. Definitions

When used in this chapter--

. . . .

(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[.]

7 U.S.C. § 2132(f). 

§ 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.

7 U.S.C. § 2140. 

§ 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.

7 U.S.C. § 2141. 

9 C.F.R.:

§ 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.

. . . .

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.

*4  9 C.F.R. § 1.1. 

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;

(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.

9 C.F.R. § 2.40. 

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:

*5 (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.

(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.

9 C.F.R. § 2.50(a), (b)(1)-(3) (footnotes omitted). 

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;

*6 (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.

9 C.F.R. § 2.75(a)(1). 

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.

9 C.F.R. § 2.100(a). 

SUBPART I--MISCELLANEOUS

. . . .

§ 2.131 Handling of animals.

(a) (1) Handling of all animals shall be done as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort.

9 C.F.R. § 2.131(a)(1). 

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.

(a) Structure; construction. Housing facilities for dogs and cats must be designed and constructed so that they are structurally sound. They must be kept in good repair, and they must protect the animals from injury, contain the animals securely, and restrict other animals from entering.

(b) Conditions and site. Housing facilities and areas used for storing animal food or bedding must be free of any accumulation of trash, waste material, junk, weeds, and other discarded materials. Animal areas inside of housing facilities must be kept neat and free of clutter, including equipment, furniture, and stored material, but may contain materials actually used and necessary for cleaning the area, and fixtures or equipment necessary for proper husbandry practices and research needs. Housing facilities other than those maintained by research facilities and Federal research facilities must be physically separated from any other business. If a housing facility is located on the same premises as another business, it must be physically separated from the other business so that animals the size of dogs, skunks, and raccoons are prevented from entering it.

*7 . . . .

(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 C.F.R. § 3.1(a), (b), (e), (f) (footnote omitted). 

§ 3.2 Indoor housing facilities.

. . . .

(b) Ventilation. Indoor housing facilities for dogs and cats must be sufficiently ventilated at all times when dogs or cats are present to provide for their health and well-being, and to minimize odors, drafts, ammonia levels, and moisture condensation. Ventilation must be provided by windows, vents, fans, or air conditioning. Auxiliary ventilation, such as fans, blowers, or air conditioning must be provided when the ambient temperature is 85 ° F (29.5 ° C) or higher. The relative humidity must be maintained at a level that ensures the health and well-being of the dogs or cats housed therein, in accordance with the directions of the attending veterinarian and generally accepted professional and husbandry practices.

*8 (c) Lighting. Indoor housing facilities for dogs and cats must be lighted well enough to permit routine inspection and cleaning of the facility, and observation of the dogs and cats. Animal areas must be provided a regular diurnal lighting cycle of either natural or artificial light. Lighting must be uniformly diffused throughout animal facilities and provide sufficient illumination to aid in maintaining good housekeeping practices, adequate cleaning, adequate inspection of animals, and for the well-being of the animals. Primary enclosures must be placed so as to protect the dogs and cats from excessive light.

(d) Interior Surfaces. The floors and walls of indoor housing facilities, and any other surfaces in contact with the animals, must be impervious to moisture. The ceilings of indoor housing facilities must be impervious to moisture or be replaceable (e.g., a suspended ceiling with replaceable panels).

9 C.F.R. § 3.2(b), (c), (d). 

§ 3.4 Outdoor housing facilities.

. . . .

(b) Shelter from the elements. Outdoor facilities for dogs or cats must include one or more shelter structures that are accessible to each animal in each outdoor facility, and that are large enough to allow each animal in the shelter structure to sit, stand, and lie in a normal manner, and to turn about freely. In addition to the shelter structures, one or more separate outside areas of shade must be provided, large enough to contain all the animals at one time and protect them from the direct rays of the sun. Shelters in outdoor facilities for dogs or cats must contain a roof, four sides, and a floor, and must:

(1) Provide the dogs and cats with adequate protection and shelter from the cold and heat;

(2) Provide the dogs and cats with protection from the direct rays of the sun and the direct effect of wind, rain, or snow;

(3) Be provided with a wind break and rain break at the entrance; and

(4) Contain clean, dry, bedding material if the ambient temperature is below 50 ° F (10 ° C). Additional clean, dry bedding is required when the temperature is 35 ° F (1.7 ° C) or lower.

9 C.F.R. § 3.4(b). 

§ 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;

(ii)Protect the dogs and cats from injury;

. . . .

(x)Have floors that are constructed in a manner that protects the dogs' and cats' feet and legs from injury, and that, if of mesh or slatted construction, do not allow the dogs' and cats' feet to pass through any openings in the floor. If the floor of the primary enclosure is constructed of wire, a solid resting surface or surfaces that, in the aggregate, are large enough to hold all the occupants of the primary enclosure at the same time comfortably must be provided; and

*9 (xi)Provide sufficient space to allow each dog and cat to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner.

. . . .

(c) Additional requirements for dogs--(1) Space. (i) Each dog housed in a primary enclosure (including weaned puppies) must be provided a minimum amount of floor space, calculated as follows: Find the mathematical square of the sum of the length of the dog in inches (measured from the tip of its nose to the base of its tail) plus 6 inches; then divide the product by 144. The calculation is: (length of dog in inches + 6) x (length of dog in inches + 6) = required floor space in square inches. Required floor space in inches/144 = required floor space in square feet.

(ii) Each bitch with nursing puppies must be provided with an additional amount of floor space, based on her breed and behavioral characteristics, and in accordance with generally accepted husbandry practices as determined by the attending veterinarian. If the additional amount of floor space for each nursing puppy is less than 5 percent of the minimum requirement for the bitch, such housing must be approved by the attending veterinarian in the case of a research facility, and, in the case of dealers and exhibitors, such housing must be approved by the Administrator.

(iii) The interior height of a primary enclosure must be at least 6 inches higher than the head of the tallest dog in the enclosure when it is in a normal standing position[.] . . .

9 C.F.R. § 3.6(a)(1), (a)(2)(i)-(ii), (a)(2)(x)-(xi), (c)(1). 

ANIMAL HEALTH AND HUSBANDRY STANDARDS

 . . .

§ 3.9 Feeding.

. . . .

(b) Food receptacles must be used for dogs and cats, must be readily accessible to all dogs and cats, and must be located so as to minimize contamination by excreta and pests, and be protected from rain and snow. Feeding pans must either be made of a durable material that can be easily cleaned and sanitized or be disposable. If the food receptacles are not disposable, they must be kept clean and must be sanitized in accordance with § 3.11(b) of this subpart. Sanitization is achieved by using one of the methods described in § 3.11(b)(3) of this subpart. If the food receptacles are disposable, they must be discarded after one use. Self-feeders may be used for the feeding of dry food. If self-feeders are used, they must be kept clean and must be sanitized in accordance with § 3.11(b) of this subpart. Measures must be taken to ensure that there is no molding, deterioration, and caking of feed.

9 C.F.R. § 3.9(b). 

§ 3.10 Watering.

If potable water is not continually available to the dogs and cats, it must be offered to the dogs and cats as often as necessary to ensure their health and well-being, but not less than twice daily for at least 1 hour each time, unless restricted by the attending veterinarian. Water receptacles must be kept clean and sanitized in accordance with § 3.11(b) of this subpart, and before being used to water a different dog or cat or social grouping of dogs or cats.

*10  9 C.F.R. § 3.10. 

§ 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.

9 C.F.R. § 3.11(a). 

§ 3.12 Employees.

Each person subject to the Animal Welfare regulations (9 CFR parts 1, 2, and 3) maintaining dogs and cats must have enough employees to carry out the level of husbandry practices and care required in this subpart. The employees who provide for husbandry and care, or handle animals, must be supervised by an individual who has the knowledge, background, and experience in proper husbandry and care of dogs and cats to supervise others. The employer must be certain that the supervisor and other employees can perform to these standards.

9 C.F.R. § 3.12. 

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION

(AS MODIFIED)

. . . .

Findings of Fact

1. Respondent David M. Zimmerman is an individual whose address is 951 East Main Street, Ephrata, Pennsylvania 17522 (Tr. 238-39).

2. With the exception of December 14, 1994, through March 7, 1995, 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 (Tr. 10-11).

3. When Respondent became licensed and annually thereafter for as long as the license was in effect, he received copies of the Animal Welfare Act and the Regulations and Standards, and agreed in writing to comply with the Animal Welfare Act and the Regulations and Standards (Answer ¶ I(C)).

4. Between August 1993 and October 1995, Robert Markmann, an experienced USDA Animal Care Inspector, performed several inspections at Respondent's facility. These inspections were conducted on August 3, September 27, October 4, and November 18, 1993; January 3, February 16, May 16, June 22, and August 11, 1994; and October 31, 1995 (CX 3-CX 11, CX 14). With the exception of the first two inspections, which Mr. Markmann conducted alone, a USDA veterinarian was present and took part in each inspection at Respondent's facility (CX 5, CX 11, CX 14[; Tr. 18]).

*11 5. Each inspection revealed that Respondent's facility was not in compliance with the [Animal Welfare] Act and the Regulations [and Standards] (CX 3[-]CX 11, CX 14). Following each inspection, Respondent was given a copy of a written inspection report detailing all items at his facility which were found to be deficient under the [Animal Welfare] Act and the Regulations [and Standards] (Tr. 15-19, 338). In addition, he was given numerous opportunities to achieve compliance with the Animal Welfare Act and the Regulations and Standards.

6. On August 3, 1993, [the Animal and Plant Health Inspection Service (hereinafter] APHIS) inspected Respondent's premises and found that:

a. 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 failed to provide veterinary care to animals in need of care (CX 3; Tr. 25);

b. Respondent failed to provide primary enclosures for dogs which were structurally sound and maintained in good repair (CX 3; Tr. 23-24); and

c. Respondent failed to remove excreta from primary enclosures on a daily basis, in order to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors (CX 3; Tr. 24).

7. On September 27, 1993, APHIS inspected Respondent's premises and records and found that:

a. Respondent failed to individually identify all dogs held on the premises (CX 4; Tr. 31);

b. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals (CX 4; Tr. 31-32);

c. Respondent handled animals in a manner which caused trauma, behavioral stress, physical harm, and unnecessary discomfort to the animals (CX 4; Tr. 32);

d. 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 failed to provide veterinary care to animals in need of care (CX 4; Tr. 33-36);

e. Respondent failed to physically separate housing facilities for dogs from another business (CX 4; Tr. 28, 39);

f. Respondent failed to ensure that the floors, walls, and ceilings of indoor housing facilities, and other surfaces in contact with the animals, were impervious to moisture (CX 4; Tr. 28-29); and

g. Respondent failed to ensure that primary enclosures for dogs were constructed so as to provide sufficient space to allow each animal to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner (CX 4; Tr. 29-30).

8. On October 4, 1993, APHIS inspected Respondent's premises and found that:

a. 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 failed to provide veterinary care to animals in need of care (CX 5; Tr. 122-33);

*12 b. Respondent failed to store supplies of food and bedding in a manner so as to protect them from spoilage, contamination, and vermin infestation (CX 5; Tr. 42-43);

c. Respondent failed to have outdoor housing facilities for dogs which contained shelter structures large enough to allow each animal to sit, stand, and lie in a normal manner, and to turn about freely (CX 5; Tr. 43);

d. Respondent failed to have primary enclosures for dogs which were structurally sound and maintained in good repair so as to protect the animals from injury and which had no sharp points or edges that could injure the animals (CX 5; Tr. 43-45);

e. Respondent failed to remove excreta from primary enclosures daily, to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors (CX 5, CX 16; Tr. 45, 4[8]-50);

f. Respondent failed to ensure that housing facilities for dogs and areas used for storing animal food were free of an accumulation of trash, waste material, junk, and other discarded materials (CX 5; Tr. 46); and

g. Respondent failed to have primary enclosures for dogs which were constructed so as to provide sufficient space to allow each animal to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner (CX 5; Tr. 134-35).

9. On November 18, 1993, APHIS inspected Respondent's premises and records and found that:

a. Respondent failed to individually identify all dogs on the premises (CX 6; Tr. 140);

b. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals (CX 6; Tr. 140);

c. 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 failed to provide veterinary care to animals in need of care (CX 6, CX 18 at 18-25; Tr. 141-49);

d. 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 minimized contamination and disease risks (CX 6; Tr. 52, 63-64);

e. Respondent failed to provide dogs in outdoor housing facilities with adequate protection from the elements (CX 6; Tr. 52-53);

f. Respondent failed to keep [water] receptacles for dogs clean and sanitized (CX 6, CX 18 at 17; Tr. 53, 64);

g. Respondent failed to have enough employees to carry out the required level of husbandry practices and care (CX 6; Tr. 53);

h. Respondent failed to have primary enclosures for dogs which were structurally sound and maintained in good repair (CX 6, CX 18 at 1-2; Tr. 54, 60-61);

i. Respondent failed to have primary enclosures for dogs which were constructed so as to provide sufficient space to allow each animal to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner (CX 6; Tr. 55-58);

j. Respondent failed to remove excreta from primary enclosures daily, to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors (CX 6; Tr. 61-63); and

*13 k.Respondent failed to ensure that housing facilities for dogs and areas used for storing animal food were free of an accumulation of trash, waste material, junk, and other discarded materials (CX 6; Tr. 139).

10. On January 3, 1994, APHIS inspected Respondent's premises and records and found that:

a. Respondent failed to individually identify all dogs on the premises (CX 7; Tr. 67);

b. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals (CX 7; Tr. 67);

c. 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 failed to provide veterinary care to animals in need of care (CX 7, CX 19 at 1-3; Tr. 152-56);

d. Respondent failed to store supplies of food and bedding in a manner that protected them from spoilage, contamination, and vermin infestation (CX 7; Tr. 66); and

e. Respondent failed to have primary enclosures for dogs which were structurally sound and maintained in good repair so as to protect the animals from injury (CX 7; Tr. 66-67).

11. On February 16, 1994, APHIS inspected Respondent's premises and records and found that:

a. Respondent failed to individually identify all dogs on the premises (CX 8; Tr. 71);

b. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals (CX 8; Tr. 71-72); and

c. Respondent failed to provide veterinary care to animals in need of care (CX 8; Tr. 157).

12. On May 16, 1994, APHIS inspected Respondent's premises and records and found that:

a. Respondent failed to individually identify all dogs on the premises (CX 9; Tr. 76);

b. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals (CX 9; Tr. 76-77);

c. Respondent failed to provide veterinary care to animals in need of care (CX 9, CX 20 at 1-7; Tr. 158-66);

d. Respondent failed to have primary enclosures for dogs which were structurally sound and maintained in good repair (CX 9; Tr. 75);

e. Respondent failed to store supplies of food and bedding in a manner so as to protect them from spoilage, contamination, and vermin infestation (CX 9; Tr. [74-]75); and

f. Respondent failed to provide each dog housed in a primary enclosure with an adequate amount of floor space [(CX 9; Tr. 76).]

13. On June 22, 1994, APHIS inspected Respondent's premises and found that:

a. Respondent failed to provide veterinary care to animals in need of care (CX 10; Tr. 196-99);

b. Respondent failed to have primary enclosures for dogs which were structurally sound and maintained in good repair (CX 10; Tr. 83);

c. Respondent failed to ensure that floors were constructed in a manner so as to protect dogs' feet from injury and failed to ensure that [floors] were . . . constructed so as not to allow the dogs' feet to pass through openings in the floor (CX 10; Tr. 84); and

*14 d. Respondent failed to remove excreta from primary enclosures on a daily basis, in order to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors (CX 10; Tr. 83-84).

14. On August 11, 1994, APHIS inspected Respondent's premises and records and found that:

a. Respondent failed to individually identify all dogs on the premises (CX 11; Tr. 88);

b. Respondent failed to provide veterinary care to animals in need of care (CX 11; Tr. 203);

c. Respondent failed to have primary enclosures for dogs which were structurally sound and maintained in good repair (CX 11; Tr. 87-88); and

d. Respondent failed to physically separate housing facilities for dogs from another business (CX 11; Tr. 87).

15. On October 31, 1995, APHIS inspected Respondent's premises and records and found that:

a. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals (CX 14; Tr. 97);

b. Respondent failed to provide veterinary care to animals in need of care (CX 14, CX 21 at 6-9; Tr. 210-13);

c. Respondent failed to individually identify all dogs on the premises (CX 14; Tr. 97);

d. Respondent failed to have housing facilities for dogs which were structurally sound and which protected the animals from injury, contained them securely, and restricted other animals from entering (CX 14; Tr. 92);

e. Respondent failed to ensure that housing facilities for dogs and areas used for storing animal food were free of an accumulation of trash, waste material, junk, and other discarded materials (CX 14; Tr. 93);

f. Respondent failed to store supplies of food and bedding in a manner so as to protect them from spoilage, contamination, and vermin infestation (CX 14; Tr. 93);

g. Respondent failed to provide for the regular and frequent collection, removal, and disposal of animal wastes and other fluids and wastes, in a manner that minimized contamination and disease risks (CX 14; Tr. 93-95);

h. Respondent failed to have indoor housing facilities for dogs which were sufficiently ventilated to provide for the health and well-being of the animals and to minimize odors, drafts, ammonia levels, and moisture condensation (CX 14; Tr. 94);

i. Respondent failed to have indoor housing facilities for dogs which were lighted well enough to permit routine inspection and cleaning of the facility, and observation of the dogs (CX 14; Tr. 94);

j. Respondent failed to ensure that dogs in outdoor housing facilities were provided with adequate protection from the elements (CX 14, CX 21 at 5; Tr. 94-95, 102);

k. Respondent failed to have primary enclosures for dogs which were structurally sound and maintained in good repair, so as to protect the animals from injury and to ensure that there were no sharp points and edges that could injure the animals (CX 14; Tr. 96);

l. Respondent failed to clean and sanitize self-feeders (CX 14; Tr. 96); and

*15 m. Respondent failed to remove excreta from primary enclosures on a daily basis, in order to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors (CX 14; Tr. 96).

Conclusions of Law

1. On August 3, 1993, Respondent willfully violated:

a. section 2.40 of the Regulations (9 C.F.R. § 2.40 (1993)) by failing 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 failing to provide veterinary care to animals in need of care;

b. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1) (1993)) by failing to ensure that primary enclosures for dogs were structurally sound and maintained in good repair; and

c. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.11(a) of the Standards (9 C.F.R. § 3.11(a) (1993)) 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 September 27, 1993, Respondent willfully violated:

a. 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) (1993)) by failing to identify all dogs on the premises;

b. 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) (1993)) by failing to maintain complete records showing the acquisition, disposition, and identification of animals;

c. sections 2.100(a) and 2.131(a)(1) of the Regulations (9 C.F.R. §§ 2.100(a), .131(a)(1) (1993)) by handling animals in a manner which caused trauma, behavioral stress, physical harm, and unnecessary discomfort;

d. section 2.40 of the Regulations (9 C.F.R. § 2.40 (1993)) by failing 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 failing to provide veterinary care to animals in need of care;

e. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.1(b) of the Standards (9 C.F.R. § 3.1(b) (1993)) by failing to have housing facilities which were physically separated from another business;

f. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.2(d) of the Standards (9 C.F.R. § 3.2(d) (1993)) by failing to ensure that the floors, walls, and ceilings of indoor housing facilities and other surfaces coming in contact with animals were impervious to moisture; and

g. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.6(a)(2)(xi) of the Standards ( 9 C.F.R. §3.6(a)(2)(xi) (1993)) by failing to ensure that primary enclosures for dogs were constructed so as to provide sufficient space to allow each animal to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner.

*16 3. On October 4, 1993, Respondent willfully violated:

a. section 2.40 of the Regulations (9 C.F.R. § 2.40 (1993)) by failing 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 failing to provide veterinary care to animals in need of care;

b. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.1(e) of the Standards (9 C.F.R. § 3.1(e) (1993)) by failing to store supplies of food and bedding in a manner so as to protect them from spoilage, contamination, and vermin infestation;

c. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.4(b) of the Standards (9 C.F.R. § 3.4(b) (1993)) by failing to ensure that outdoor housing facilities for dogs did . . . contain shelter structures large enough to allow each animal to sit, stand, and lie in a normal manner, and to turn about freely;

d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.6(a)(1), (a)(2)(i), and (a)(2)(ii) of the Standards (9 C.F.R. § 3.6(a)(1), (a)(2)(i)-(ii) (1993)) by failing to have primary enclosures for dogs which were structurally sound and maintained in good repair, so as to protect the animals from injury, and which had no sharp points or edges that could injure the animals;

e. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.11(a) of the Standards (9 C.F.R. § 3.11(a) (1993)) by failing to remove excreta from primary enclosures daily, to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors;

f. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.1(b) of the Standards (9 C.F.R. § 3.1(b) (1993)) by failing to ensure that housing facilities for dogs and areas used for storing animal food were free of an accumulation of trash, waste material, junk, and other discarded materials; and

g. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.6(a)(2)(xi) of the Standards (9 C.F.R. § 3.6(a)(2)(xi) (1993)) by failing to provide sufficient space to allow each animal to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner.

4. On November 18, 1993, Respondent willfully violated:

a. 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 (1993)) by failing to individually identify all dogs on the premises;

b. 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) (1993)) by failing to maintain complete records showing the acquisition, disposition, and identification of animals;

c. section 2.40 of the Regulations (9 C.F.R. § 2.40 (1993)) by failing 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 failing to provide veterinary care to animals in need of care;

*17 d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.1(f) of the Standards (9 C.F.R. § 3.1(f) (1993)) 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 minimized contamination and disease risks;

e. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.4(b) of the Standards (9 C.F.R. § 3.4(b) (1993)) by failing to provide dogs in outdoor housing facilities with adequate protection from the elements;

f. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.10 of the Standards (9 C.F.R. § 3.10 (1993)) by failing to keep watering receptacles for dogs clean and sanitized;

g. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.12 of the Standards (9 C.F.R. § 3.12 (1993)) by failing to have enough employees to carry out the required level of husbandry practices and care;

h. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1) (1993)) by failing to have primary enclosures for dogs which were structurally sound and maintained in good repair;

i. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.6(a)(2)(xi) of the Standards (9 C.F.R. § 3.6(a)(2)(xi) (1993)) by failing to have primary enclosures for dogs which were constructed so as to provide sufficient space to allow each animal to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner;

j. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1993)) and section 3.11(a) of the Standards (9 C.F.R. § 3.11(a) (1993)) by failing to remove excreta from primary enclosures daily, to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors; and

k.section 2.100(a) of the Regulations and section 3.1(b) of the Standards (9 C.F.R. § 3.1(b) (1993)) by failing to ensure that housing facilities for dogs and areas used for storing animal food were free of an accumulation of trash, waste material, junk, and other discarded materials.

5. On January 3, 1994, Respondent willfully violated:

a. 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 (1994)) by failing to individually identify all dogs on the premises;

b. 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) (1994)) by failing to maintain complete records showing the acquisition, disposition, and identification of animals;

c. section 2.40 of the Regulations (9 C.F.R. § 2.40 (1994)) by failing 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 failing to provide veterinary care to animals in need of care;

*18 d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1994)) and section 3.1(e) of the Standards (9 C.F.R. § 3.1(e) (1994)) by failing to store supplies of food and bedding in a manner that protected them from spoilage, contamination, and vermin infestation; and

e. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1994)) and section 3.6(a)(1) and (a)(2)(ii) of the Standards (9 C.F.R. § 3.6(a)(1), (a)(2)(ii) (1994)) by failing to have primary enclosures for dogs which were structurally sound and maintained in good repair, so as to protect the animals from injury.

6. On February 16, 1994, Respondent willfully violated:

a. 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 (1994)) by failing to individually identify all dogs on the premises;

b. 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) (1994)) by failing to maintain complete records showing the acquisition, disposition, and identification of animals; and

c. section 2.40 of the Regulations (9 C.F.R. § 2.40) (1994) by failing to provide veterinary care to animals in need of care.

7. On May 16, 1994, Respondent willfully violated:

a. 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 (1994)) by failing to individually identify all dogs on the premises;

b. 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) (1994)) by failing to maintain complete records showing the acquisition, disposition, and identification of animals;

c. section 2.40 of the Regulations (9 C.F.R. § 2.40 (1994)) by failing to provide veterinary care to animals in need of care;

d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1994)) and section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1) (1994)) by failing to have primary enclosures for dogs which were structurally sound and maintained in good repair;

e. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1994)) and section 3.1(e) of the Standards (9 C.F.R. § 3.1(e) (1994)) by failing to store supplies of food and bedding in a manner so as to protect them from spoilage, contamination, and vermin infestation; and

f. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1994)) and section 3.6(c) of the Standards (9 C.F.R. § 3.6(c) (1994)) by failing to provide each dog housed in a primary enclosure with an adequate amount of floor space.

8. On June 22, 1994, Respondent willfully violated:

a. section 2.40 of the Regulations (9 C.F.R. § 2.40 (1994)) by failing to provide veterinary care to animals in need of care;

b. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1994)) and section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1) (1994)) by failing to have primary enclosures for dogs which were structurally sound and maintained in good repair;

*19 c. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1994)) and section 3.6(a)(2)(x) of the Standards (9 C.F.R. § 3.6(a)(2)(x) (1994)) by failing to ensure that floors were constructed in a manner so as to protect dogs' feet from injury and failing to ensure that [floors] were constructed so as not to allow the dogs' feet to pass through openings in the floor; and

d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1994)) and section 3.11(a) of the Standards (9 C.F.R. § 3.11(a) (1994)) by failing to remove excreta from primary enclosures on a daily basis, in order to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors.

9. On August 11, 1994, Respondent willfully violated:

a. 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 (1994)) by failing to individually identify all dogs on the premises;

b. section 2.40 of the Regulations (9 C.F.R. § 2.40 (1994)) 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) (1994)) and section 3.6(a)(1) of the Standards (9 C.F.R. § 3.6(a)(1) (1994)) by failing to have primary enclosures for dogs which were structurally sound and maintained in good repair; and

d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1994)) and section 3.1(b) of the Standards (9 C.F.R. § 3.1(b) (1994)) by failing to ensure that housing facilities for dogs were physically separated from another business.

10. On October 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) (1995)) 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 (1995)) by failing to provide veterinary care to animals in need of care;

c. 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 (1995)) by failing to individually identify dogs;

d. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.1(a) of the Standards (9 C.F.R. § 3.1(a) (1995)) by failing to have housing facilities for dogs which were structurally sound and protected the animals from injury, contained them securely, and restricted other animals from entering;

e. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.1(b) of the Standards (9 C.F.R. § 3.1(b) (1995)) by failing to ensure that housing facilities for dogs and areas used for storing animal food were free of an accumulation of trash, waste material, junk, and other discarded materials;

f. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.1(e) of the Standards (9 C.F.R. § 3.1(e) (1995)) by failing to store supplies of food and bedding in a manner so as to protect them from spoilage, contamination, and vermin infestation;

*20 g. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.1(f) of the Standards (9 C.F.R. § 3.1(f) (1995)) 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;

h. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.2(b) of the Standards (9 C.F.R. § 3.2(b) (1995)) by failing to have indoor housing facilities for dogs which were sufficiently ventilated to provide for the health and well-being of the animals and to minimize odors, drafts, ammonia levels, and moisture condensation;

i. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.2(c) of the Standards (9 C.F.R. § 3.2(c) (1995)) by failing to ensure that indoor housing facilities for dogs were lighted well enough to permit routine inspection and cleaning of the facility, and observation of the dogs;

j. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.4(b) of the Standards (9 C.F.R. § 3.4(b) (1995)) by failing to provide dogs in outdoor housing facilities with adequate protection from the elements;

k. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.6(a)(1) and (a)(2)(i) of the Standards (9 C.F.R. § 3.6(a)(1), (a)(2)(i) (1995)) by failing to have primary enclosures for dogs which were structurally sound and maintained in good repair, so as to protect the animals from injury and which had no sharp points and edges that could injure the animals;

l. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.9(b) of the Standards (9 C.F.R. § 3.9(b) (1995)) by failing to clean and sanitize self-feeders; and

m. section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a) (1995)) and section 3.11(a) of the Standards (9 C.F.R. § 3.11(a) (1995)) by failing to remove excreta from primary enclosures on a daily basis, in order to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors.

Discussion

USDA conducted 10 inspections at Respondent's facility. During the first two inspections on August 3 and September 27, 1993, Robert Markmann was the sole USDA representative. During the following eight inspections, Mr. Markmann was accompanied by a USDA veterinarian. On [October 4, and] November 18, 1993, and January 3, February 16, [and] May 16, . . . 1994, Dr. James O'Malley accompanied Mr. Markmann [(Tr. 122)]; on June 22 and August 11, 1994, Dr. Mary Geib accompanied Mr. Markmann [(Tr. 194)]; and on October 31, 1995, Dr. Norma Harlan accompanied Mr. Markmann [(Tr. 210)]. Respondent was present during all of these inspections.

I found Mr. Markmann and Drs. O'Malley, Geib, and Harlan to be highly qualified witnesses who performed careful and thorough inspections and whose testimonies were completely credible. During his 10 years of employment with USDA, Mr. Markmann has performed over 4,000 inspections of licensed facilities under the Animal Welfare Act (Tr. 13-14). Dr. O'Malley has performed approximately 1,000 such inspections (Tr. 120); Dr. Geib has performed approximately 500 such inspections (Tr. 192); and Dr. Harlan has performed over 3,500 inspections (Tr. 208). All of these officials testified impressively as to their careful inspection routines and all testified with great credibility as to the violations that they observed at Respondent's facility. Their observations were carefully documented in their written reports and many of the violations, including violations for lack of care for the animals and the facilities, were documented by graphic and often shocking photographs (CX 15- [CX 16, CX 18-CX 21]).

*21 Respondent's sole evidence in dispute of Complainant's overwhelming evidence was his own testimony. Respondent testified that the kennels were cleaned daily (Tr. 240). However, based upon the many photographs and the credible testimony of Complainant's witnesses, I did not find [that Respondent's kennels were cleaned daily]. I did not find credible [Respondent's testimony] that the USDA inspectors made the dogs nervous and caused the dogs' excrement found in the kennels during the inspectors' visits [(Tr. 253-54)]. I found more credible evidence that this excrement was improperly allowed to accumulate. Respondent's explanations with regard to the many other types of violations were similarly not credible in the face of the shocking photographs and detailed and consistent testimony of the USDA inspectors. Many photographs of the wounds and sores of the animals showed that the animals were poorly cared for. Other photographs showed badly maintained cages and pens, [accumulated] excrement, and dirty feeding bowls. The testimony of overcrowding of animals in pens [seemingly] smaller than the animals themselves was also shocking. Overall, I was appalled by the conditions to which the animals were exposed and did not find that Respondent credibly contradicted any of Complainant's [evidence].

The Appropriate Sanction

Complainant has recommended [that Respondent be issued a cease and desist order,] that a civil penalty be assessed against Respondent in the amount of $51,250, and that Respondent's license be suspended for 60 days [(Complainant's Proposed Findings of Fact, Conclusions of Law, and Brief in Support Thereof at 25-28)]. Although the amount of the requested [civil] penalty is large, upon consideration of the facts and the statutory criteria, I find that the assessment of a civil penalty of $51,250 in this matter is appropriate.

Section 19(b) of the [Animal Welfare] Act states:

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(b) (1988). 

Respondent has a business of significant size. His facility generally houses between 200 and 300 dogs and appears to be profitable (Tr.[19,] 332[-33]). Recently [(October 1995), Respondent] constructed a new . . . facility on his premises (Tr. 21).

The gravity of Respondent's violations was serious. Over the course of 10 separate USDA inspections spanning over 2 years, as documented by credible testimony of USDA inspectors and by shocking, graphic photographs, dogs in Respondent's care were found to be badly miscared for.

With respect to good faith and Respondent's history of previous violations, the record contains abundant evidence that Respondent was given clear notice of the many deficiencies at his facility and ample opportunity to correct them (CX 3[-]CX 11, CX 14). During each of the 10 inspections, Mr. Markmann and/or a USDA veterinarian, pointed out deficiencies to Respondent, made recommendations for corrections, and assigned reasonable deadline dates for corrections (CX 3 [-]CX 11, CX 14). Respondent received a copy of each inspection report which served as a written notice that certain items were found to be deficient (Tr. 15-19). In addition, Mr. Markmann and the USDA veterinarians discussed the Animal Welfare Act with Respondent and spent time educating him as to the requirements of the Animal Welfare Act and the Regulations and Standards (CX 3 [-]CX 11, CX 14; Tr. 15-19, [120-22, 166, 195, 209-10]). Although APHIS officials tried to work with the Respondent and help him bring his facility into compliance with the Animal Welfare Act, Respondent continued to commit many of the violations. Throughout the 27-month period that APHIS inspected his facility, Respondent was continuously cited for numerous, serious violations.

*22 The purpose of sanctions is to deter Respondent, as well as others, from committing the same or similar violations. Over the course of 10 inspections, during a period of over 2 years, the USDA officials were unable to persuade Respondent to correct his many violations of the Animal Welfare Act [and the] Regulations and Standards. In view of this history, and Respondent's lack of good faith, the requested penalty of $51,250 is not excessive. Hopefully, the assessment of this penalty will persuade this Respondent and other would-be violators that such practices are intolerable.

In addition to the civil penalty, [Respondent is ordered to cease and desist from violating the Animal Welfare Act and the Regulations and Standards, and] Respondent's license [is] suspended for a period of 60 days and continuing until he is in compliance with the Animal Welfare Act [and the] Regulations and Standards, and the Order [in this Decision and Order].

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Complainant has carried its burden of proof by much more than a preponderance of the evidence, which is all that is required for the violations alleged in the Amended Complaint. [FN2]

Respondent's appeal reads in its entirety, as follows:

I want to appeal for another hearing as I am not satis[]fied with the statement the judge wrote as it is very one sided.

Markmann said he alway[s] told us what to do so I can fix it but the last 8 inspections he did not talk to me during inspection and that was brought out in the hearing. We cannot see how he can stand there and say he did because that is very untruthful. We do not feel that is a fair trial as it is just how Markmann told us that the judge will rule in his favor and that is how it is. We were alway[s] taught to respect our authorities but they are so unthrust [sic] that we do not know what to do. We tried to correct everything we could find and more then [sic] once we could not find anything wrong and till the next time it was alright [sic].

He also stated that some pens were smaller then [sic] the dog itself and we never found anything like that in my kennel. They said we had junk around the dog feed and we alway[s] made sure it was cleaned up then the last inspection I asked where do you find trash and they said there are a couple empty feed bags there and that is trash and before that we always had them on a nice pile and everything was alright [sic].

Veterinary care we do not know why he thinks we don't have vet care as we have a care program and he gave us the list of times we were in contact with him at the hearing so that was a very dishonest statement.

He stated we do not have enough help but we had 7 people working here on the farm as we work long days as we grew up on the farm and are use to work[.]

We would like to keep our farm so please help us as we do not have any money for something like that as we think we are not treated farely [sic] with our inspectors[.]

*23 According to other places that he inspects as Markmann told a friend he is going to put us out of business and that is how everything looks[.]

/s/ David M. Zimmerman

Respondent argues that the ALJ's decision is "very one sided." I infer that Respondent's point is that the ALJ erred when he completely agreed with the Complainant's version of the facts. I reject this argument because there is no legal requirement that the ALJ apportion his decision between the parties. Rather, the ALJ should decide the case based upon the evidence. Here, the ALJ correctly weighed Complainant's evidence, but Respondent did not directly address and refute Complainant's evidence. When Complainant puts on evidence to prove its case, and Respondent does not refute that case, it is not error for the ALJ to side completely with Complainant.

Respondent argues that the hearing showed that Inspector Robert Markmann was very untruthful in his saying he always told Respondent what to fix, because Inspector Markmann did not talk with Respondent during the last eight inspections, thereby depriving Respondent of the knowledge of, and the opportunity to correct, the deficiencies. I reject this argument for a number of reasons.

First, Respondent does not cite to any Markmann statements in the transcript to support Respondent's allegation that this Markmann untruthfulness is in the record. Second, Inspector Markmann testified in great detail of his routine procedures, utilized in Respondent's facility as in all other licensed facilities, which procedures include that during inspections Inspector Markmann completes a USDA inspection report giving notice to the licensed facility owner of the cited operational deficiencies; that after inspections Inspector Markmann reviews with licensees his written inspection report and advises of non-compliant items; and that after the licensee signs the report, a copy is provided to the licensee (Tr. 14-16).

Third, Inspector Markmann specifically rebutted these charges in direct testimony, as follows:

BY MS. HANSBERRY:

Q. You've heard the testimony today Mr. Markmann and one thing that has been brought up was that the --Mr. Zimmerman felt that he did not always know what non-compliant items there were that were found on a given day and he said that sometimes you would --sometimes you would say something was non-compliant and then come back and say the same thing was compliant. And my question is were you consistent in the way that you inspected the facility. Did you do it by the same standards and regulations every time?

[BY MR. MARKMANN]

A. I think we did our best over the course of the last years. When I was alone, Mr. Zimmerman would be right next to me and we would converse as we were walking through. Often times when I had a veterinarian with me, Mr. Zimmerman would kind of observe us unless we had questions. Then we'd call him to our attention but he wouldn't walk to us. It's very difficult to do an inspection when he is 20 or 30 paces behind you. So we would call him if we had questions on veterinary care. If the dog needed to be examined, I would ask Mr. Zimmerman if he could pull the dog out so that the veterinarian could examine the animal.

*24 If we needed to take a photograph, Mr. Zimmerman would then turn the dog over to one of our veterinarians so that I could take a picture of the animal.

Q. So he accompanied you on every inspection and you're saying that if you found a veterinary violation you would call him over?

A. Yes. If there were structural things, we would point them out during the inspection. Sometimes if his sons were handy, they could correct some of the things right there. If there was any kind of serious thing like boards or nails, we could mention that as we were going through so he could easily fix them.

Q. Okay. He said or he testified that in the last quarter of '93 things changed and you did not communicate with him as much about what non-compliant items you found. Do you agree with that?

A. No, I do not.

Q. So you're saying you always did communicate the non-compliant items and let him know what you were finding?

A. Especially if he stood next to us. If he was down like I said if he was behind us and more observing at a distance, we would have to call him up when we had specific questions especially on veterinary care.

Q. Why was he behind you. Was he doing something else?

A. He might be more observing us. He may not be right there.

Q. But he had the opportunity to be with you and talk to you if he wanted to?

A. Yes.

Q. Okay. And he signed every report and you read every report to him?

A. Yes.

Q. In full?

A. Yes.

Q. You didn't skip over anything?

A. Not that I can recall.

Tr. 336-39. 

Based upon this testimony, I find that Respondent was at fault for the Respondent's perceived difference between the first two and the last eight inspections. That is, Respondent by his own choice followed the inspector and the USDA veterinarian at a large distance, and that is the reason Mr. Markmann did not speak to Respondent in the same fashion as in the first two inspections. Nevertheless, Respondent's argument is irrelevant to the violations, because the inspector is not required to provide Respondent a running account of what must be corrected while the inspection is being conducted. Rather, the APHIS inspector and veterinarian routinely provide a licensee with copies of the Animal Care Inspection Report, APHIS Forms 7008 and 7100, and the APHIS personnel routinely conduct an exit interview to explain their findings and to answer a licensee's questions. This routine was accorded Respondent in all eight of the inspections of which Respondent complains.

Fourth, in all but the first two of the ten inspections, Inspector Markmann was accompanied by a USDA veterinarian. Each of the veterinarians for each of the eight inspections testified that they discussed with Respondent the requirements of the Animal Welfare Act and the Regulations and Standards, usually at an exit interview. Dr. James O'Malley testified that he helped conduct the October 4 and November 18, 1993, and the January 3, February 16, and May 16, 1994, inspections, after each of which he gave Respondent an exit interview (Tr. 120-22, 166). Dr. Mary Geib testified that she helped conduct the June 22 and the August 11, 1994, inspections, and that she spent time with Respondent and his representatives discussing with them, and educating them, about the Animal Welfare Act and the Regulations and Standards (Tr. 195). Dr. Norma Jean Harlan testified to the same effect about the October 31, 1995, inspection (Tr. 209-10).

*25 Therefore, even if Respondent was correct that Inspector Markmann did not talk with Respondent in the last eight inspections in the same manner as in the first two inspections, it would not affect the outcome of this proceeding.

Moreover, it is well settled that a violation corrected prior to a subsequent inspection does not exculpate Respondent for the original violation. Each dealer, exhibitor, operator of an auction sale, and intermediate handler must always be in compliance in all respects with the Animal Welfare Act and the Regulations and Standards. This duty exists regardless of any correction date suggested by an APHIS inspector who notes the existence of a violation. While corrections are to be encouraged and may be taken into account when determining the sanction to be imposed, even the immediate correction of a violation does not operate to eliminate the fact that a violation occurred and does not provide a basis for the dismissal of the alleged violations. [FN3]

Respondent argues on appeal that he did not receive a fair trial and even testified that Inspector Markmann told Respondent the ALJ would rule for the Department (Tr. 311). Also, Respondent states that he corrected everything that he could find and that he more than once could not find anything wrong. These statements are irrelevant, because they neither describe error by the ALJ, nor do they independently set forth questions of error. I find that Respondent received a fair hearing. In fact, the evidence is overwhelming that the violations occurred as charged; and Respondent produced no significant rebuttal evidence. Respondent, beyond bald denials, did not have answers to the charges.

Moreover, throughout this proceeding, Respondent complains that the problem is Inspector Markmann's zealotry. Respondent does not so much deny the violations as Respondent complains that these conditions were not even cited as violations by APHIS inspectors in the recent past. The fact that Respondent was not cited for conditions on his premises in the past is not a basis for dismissing the violations alleged in the Amended Complaint. The ALJ found that Respondent's continuing violations through 10 inspections by Inspector Markmann constituted a lack of good faith, and I agree.

Respondent understandably denies having some pens in his kennel smaller than the dogs housed in those kennels. Nonetheless, I find it obvious from the testimony, documentary evidence, and photographs that the overcrowding was so bad that it must have seemed to an observer that the dogs were larger than the pens. Thus, I conclude that the ALJ was merely repeating hyperbole when the ALJ expressed shock at the "testimony of overcrowding of animals in pens sometimes smaller than the animals themselves" (Initial Decision and Order at 22; CX 4, CX 5 at 8-9, CX 6 at 4, CX 9, CX 15 at 3-5, CX 16 at 1-2; Tr. 29-30, 39-40, 55- 58, 76, 134-35). Of course, it being literally impossible for a dog to be larger than its pen, I have modified the ALJ's statement by adding the word "seemingly" in place of "sometimes." In any event, Respondent has provided no rebuttal evidence in response to the clearly overwhelming evidence of Respondent's repeated space requirements violations under section 3.6(a)(2)(xi) and (c) of the Standards (9 C.F.R. § 3.6(a)(2)(xi), (c)).

*26 Respondent disputes the violation that he had "junk around the dog feed" in violation of section 3.1(b) of the Standards (9 C.F.R. § 3.1(b)). However, Respondent constructively admits the violation by admitting that he put empty feedbags in a "nice pile," which Respondent contends used to be all right. Irrespective of prior inspections where Respondent may or may not have been cited for trash in the form of empty feedbags stored with dog feed, Respondent presents no probative evidence for dismissing this violation.

Respondent denies not having a program of adequate veterinary care, as required by section 2.40 of the Regulations (9 C.F.R. § 2.40). This argument is totally without merit. The medical condition of many of Respondent's animals shocked the ALJ. I concur with the ALJ after reviewing Complainant's witnesses' testimony and the photographs of dogs under Respondent's control. I find that Respondent's dogs were not given adequate veterinary care and that this violation was documented in great detail during all 10 inspections, covered in the Amended Complaint, by Inspector Robert Markmann, and Drs. O'Malley, Geib, and Harlan (CX 3-CX 11, CX 14, CX 15 at 8- 10, CX 16 at 4-5, CX 18 at 18-25, CX 19 at 1-3, CX 20 at 1-7, CX 21 at 6-9; Tr. 25, 33-36, 122-23, 141-49, 152-66, 196-98, 203, 210-13).

Moreover, I find that Respondent's evidence of veterinary care, which consists of billing invoices and short notes from veterinarians George F. Zimmerman and Melvyn G. Wenger of the Conestoga Animal Hospital, Inc., of Ephrata, Pennsylvania, does not suffice to show that an adequate veterinary care program was executed (RX 1-RX 6). Rather, I find that these records are anecdotal and show an ad hoc approach to veterinary care. Not only does Respondent's evidence fail to show compliance with the requirements of section 2.40 of the Regulations (9 C.F.R. § 2.40), the billing records document how little veterinary care was given to the 250 to 300 dogs at Respondent's kennel at any given time. Of the 32 months included in the billing records (August 3, 1992, to April 21, 1995, which I note is a period both beginning earlier and ending sooner than the pertinent time frame), veterinary care was charged to Respondent on approximately 62 days out of approximately 960 days. Approximately eight of the 62 entries indicate treatment of Respondent's cows, and another six apparently indicate a kennel check, with no treatment charged. Without well documented testimony from the treating veterinarian to show that an adequate level of care was actually provided, I cannot conclude that the veterinary care evidenced by Respondent's records (RX 6) is sufficient to rebut Complainant's evidence of Respondent's violations of section 2.40 of the Regulations (9 C.F.R. § 2.40). The ALJ's understanding at the hearing was that Respondent's exhibits merely showed "that Respondent did consult with the vets." (Tr. 303.)

Inspector Markmann found serious the fact that Respondent did not follow the veterinary plan on file. For instance, Respondent admitted that he would sometimes euthanize dogs with a gunshot to the head, rather than call the veterinarian as required by his plan. The following testimony by Inspector Markmann about his September 27, 1993, inspection describes the lack of adequate veterinary care and is representative of the level of veterinary care found on the other inspection dates as follows:

*27 [BY MS. HANSBERRY]

Q. Can you explain the difference between the category 3 items and the category 4 items?

[BY MR. MARKMANN]

A. The category 3 items are newly identified items, category 4 are items that are previously cited that have not been corrected.

Q. Okay, and what were your category 4 items?

A. Veterinary care, Section 2.40. I mentioned that the following dogs were in need of veterinary care. I also considered this to be a direct violation. Outdoor enclosure housing a yellow lab tag 623, was noted to be lame in the right rear leg. The leg was swollen and the dog could not bear weight on the leg.

No treatment was recorded for [t]his dog. The owner indicated the dog was recently removed for fighting. The next dog I had a was a pug female, identified by Lancaster County tag 12162. I found the dog along the north row with two other dogs present.

The pug was in a moribund condition. [Sh]e had two large wounds, approximately one and a half by two inches in diameter on both inner front legs. The wounds were deep and infected areas present with greenish discoloration. No medical records were present on this dog.

I approached Mr. Zimmerman on the condition of this dog and Mr. Zimmerman took the dog away and placed the dog in the wood shed trailer.

I asked Mr. Zimmerman how he was going to handle this dog and Mr. Zimmerman said he was going to put the dog to sleep. I asked the owner what products he had available and Mr. Zimmerman produced a ten millimeter [sic] bottle of ketoset from the house.

I further questioned the use of ketoset and whether the product was to be given IV or IM, intravenous, or intramuscle, but Mr. Zimmerman was not sure at first, but later said IV.

I also asked if ketoset was going to be used in combination with another product to produce euthanasia and Mr. Zimmerman went into the house and returned with a bottle or [sic] Prom Ace, also referred to as Ace Promozine, the tranquilizer.

I asked about dosage levels and Mr. Zimmerman claimed Dr. Stevenson wrote levels down on paper. I further discussed with Mr. Zimmerman that his program veterinary care dated 4-30-91 listed Dr. W[e]nger as his attending veterinarian and the program indicated that the veterinarian would euthanize dogs using IV euthanasia.

Mr. Zimmerman went on to say that he should just shoot the dog in the head, but that I was present. I suggested Mr. Zimmerman call Dr. W[e]nger to seek his advice. The dog was properly brought to Dr. W[e]nger's office, after discussing the condition of the dog, and the dog was euthanized.

I also wrote up dog number 112. The dog was found dead on the floor in one of the sheds, the David Jr. shed. No record of treatment was present for this dog. I mentioned that the owner needed to maintain written medical records on dogs being treated.

The medical records should indicate which dogs are under treatment, observations or signs, significant findings of physical exams, working diagnosis, dates of treatments administered, date the condition was resolved.

*28 In addition, I mentioned that the daily observations of all the dogs on premises to assess their health and well being must be conducted and a mechanism of direct and frequent communication with the attending vet must be done to discuss problems with affected animals.

I also questioned Mr. Zimmerman on dog tag 395, which was cited on the August 3rd inspection. It was a cocker spaniel that had the teary eye with the pus. Mr. Zimmerman informed me that he put the dog to sleep on August 4th.

I also mentioned that dog tag 235, a cocker spaniel that previously had overgrown nails, and they were trimmed. I mentioned to the owner that the program veterinary care on file does not list the licensee to euthanize these dogs until the licensee is trained and approved by the attending veterinarian, he must not euthanize dogs other than the method described on his program veterinary care which was on file.

Q. When you talk about the program for veterinary care on file, where on file is it and what is that?

A. Back then, you were required to have a program of veterinary care. There was a time, '91 and '92, those programs would be on file in our office. Since that time period, we now require the licensee to have that program on file at his home.

Q. So this was in '93, so was it on file with him?

A. It was in both places, it was in the office and it was on file with him.

Q. Okay, and he was required to follow that program and you're saying that in these violations, he wasn't following the program of veterinary care?

A. Yes, the program mentioned that Dr. W[e]nger would euthanize his animals and the owner mentioned that he had euthanized cocker number 395.

Q. Without the attending veterinarian?

A. Yes. . . .

Tr. 32-36 

The record demonstrates that Respondent merely reacted to sick or injured dogs on an ad hoc basis, rather than following the veterinary plan on file.

Respondent disagrees that he violated section 3.12 of the Standards (9 C.F.R. § 3.12) by not having enough employees at work during the November 18, 1993, inspection to provide the animals with the level of care required by 9 C.F.R. part 3, subpart A. Respondent asserts in his appeal that he had seven people working on the farm (Respondent's Appeal at 2). However, Respondent's testimony was that there were a total of six family members--Respondent, his wife, and four children--working the farm, the cows, the feed business, and the kennels (Tr. 322). Respondent admitted that these family members worked the kennels part time (Tr. 322-23). Therefore, I find that Respondent's argument that there were enough employees, as charged, during the November 18, 1993, inspection to be without merit, and it is hereby rejected.

Respondent's final argument is that Respondent was treated unfairly by Inspector Markmann, allegedly because a friend was told by Inspector Markmann that he (Markmann) was going to put Respondent out of business. This argument is rejected for a number of reasons, as explained below.

*29 Reliable hearsay is routinely admissible in federal administrative hearings and can be substantial evidence as long as it is reliable, probative, and meets the test of fundamental fairness, [FN4] and responsible hearsay has long been admitted in the Department's administrative proceedings. [FN5] However, Respondent gives no details of the alleged hearsay, other than Respondent's testimony that a breeder dealer told Respondent in the fall of 1993, that Markmann told her that he (Markmann) was going to build a case with the biggest citation ever against Respondent (Tr. 310). I am not persuaded that Respondent's alleged scenario is true. Inspector Markmann denied it (Tr. 342). However, even if Respondent's scenario is accepted as true, and Inspector Markmann was heard to say that he sought to put Respondent out of business, it would not change the outcome of this proceeding. Inspector Markmann does not have the power of the Secretary of Agriculture to decide who remains licensed, but merely provides evidence of alleged violations. Even if the inspector is shown to have said that he wished to put Respondent out of business (which is not shown to be the case in this proceeding), such a bias being allowed by the ALJ is not necessarily a reversible error, and it certainly does not, by itself, exculpate Respondent for violations of the Animal Welfare Act and the Regulations and Standards for which there is a preponderance of the evidence.

Although not to the level of an argument, Respondent raises three points apparently designed to mitigate the violations. One is that Respondent's beliefs preclude the use of an attorney, the second is that Respondent's beliefs include getting along with the authorities over him, and the third is that no interpreter was provided to Respondent at the hearing. These points are neither persuasive nor ameliorating and are rejected.

The record reveals that Respondent retained counsel early in this matter, and Respondent's counsel, Christopher M. Patterson, Esq., of Gray, Miller, Patterson & Cody, of Lancaster, Pennsylvania, prepared Respondent's Answer to the original Complaint. Further, Respondent states in a letter which he filed January 14, 1997, that "if we have to have another hearing[,] the community is going to have a lawyer there as they did not think it was a fair trial." This use of counsel and intention to use counsel in any future hearing does not square with Respondent's stated disbelief in the use of lawyers. Respondent may appear pro se or with counsel (7 C.F.R. § 1.141(c)), and Respondent has proceeded both ways in this proceeding. This situation, therefore, is not one for mitigation.

Similarly, I am unable to reconcile Respondent's statements that Respondent abides by the "rules of the government" (Respondent's letter filed December 21, 1995), that Respondent was taught always "to respect [his] authorities" (Respondent's letter filed August 12, 1996), and that Respondent was "taught to work with [the] authorit[ies] over [him]" (Respondent's letter filed January 14, 1997), with Respondent's record of non-compliance with the Animal Welfare Act and the Regulations and Standards as exposed by the 10 inspections of Respondent's kennel.

*30 Finally, Respondent complains that no interpreter was provided at the hearing (Respondent's letter filed January 14, 1997). Respondent's complaint comes 9 months after the hearing, 6 months after the Initial Decision and Order was filed, and 5 months after Respondent's appeal petition was due. Respondent should have raised the issue of his need to obtain an interpreter prior to the hearing. Further, it is well settled that new issues cannot be raised for the first time on appeal to the Judicial Officer. [FN6] Respondent's failure to raise the issue of his need to obtain an interpreter until after the time for appeal is too late. Moreover, the record establishes that Respondent adequately understands English and speaks and writes English fluently. Thus, I find that Respondent's complaint that no interpreter was present at the hearing to be without merit.

Sanction

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.

7 U.S.C. § 2149(a), (b). 

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):

*31 [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 ALJ properly considered the requirements of section 19(b) of the Animal Welfare Act (7 U.S.C. § 2149(b)) and determined that Respondent has a business of significant size, and there was evidence that Respondent had a large and profitable business (Tr. 19-20, 332-33). In October 1995, Respondent started construction of a new kennel facility (Tr. 21). Thus, I conclude that Respondent operated a large kennel facility and the civil penalty requested by Complainant would be appropriate.

Although prior to August 3, 1993, Respondent had only one minor violation (Tr. 305-07) in approximately 19 years as a licensee under the Animal Welfare Act, this fact is offset by the gravity and the number of violations proven in this proceeding.

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. Many of Respondent's violations are serious and constitute a failure to humanely treat Respondent's animals. I find that Respondent did not act in good faith to correct these violations. Respondent has been a licensed dealer for a long time, and a licensed dealer at all times pertinent to this proceeding. Respondent admitted in the Answer that when Respondent became licensed, and annually thereafter, Respondent received copies of the Animal Welfare Act and the Regulations and Standards, and agreed in writing to comply with them (Answer ¶ I(C)).

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. Cox v. United States Dep't of Agric., supra, 925 F.2d at 1105; 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 Volpe Vito, Inc., supra, 56 Agric. Dec. ___, slip op. at 108-09 (Jan. 13, 1997); In re Big Bear Farm, Inc., supra, 55 Agric. Dec. at 138; In re Julian J. Toney, supra, 54 Agric. Dec. at 971; In re Zoological Consortium of Maryland, Inc., supra, 47 Agric. Dec. at 1284; In re David Sabo, supra, 47 Agric. Dec. at 554. [FN7] 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."')

*32 Even though Complainant does not have to prove willfulness, because Respondent received written warnings concerning the violations and opportunities to correct the deficiencies, Respondent's willfulness is relevant to the gravity of Respondent's violations (see 5 U.S.C. § 558(c)(1)-(2)).

Complainant could have sought $2,500 for each violation. [FN8] In light of the amount that Complainant could have requested, the number of violations, the number of repeated violations, and the serious nature of many of the violations, the requested sanction of a civil penalty of $51,250, and suspension of Respondent's Animal Welfare Act license, is appropriate. 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

PARAGRAPH I

Respondent, 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:

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

b. failing to maintain a current, written program of veterinary care under the supervision of a veterinarian;

c. failing to provide veterinary care to animals as needed;

d. failing to provide a suitable method for the removal and disposal of animal wastes from primary enclosures;

e. failing to provide animals with shelter from inclement weather;

f. failing to maintain primary enclosures which are structurally sound and in good repair and are free of any sharp points or edges which could injure animals;

g. failing to provide enclosures for animals that are constructed and maintained so as to provide sufficient space to allow each animal to turn about freely and to easily stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner;

h. failing to have housing facilities for dogs physically separated from other businesses;

i. failing to store food so as to protect it against spoilage, contamination, and vermin infestation;

j. failing to clean primary enclosures for animals, as required;

k. failing to keep food and water receptacles for animals clean and sanitized, as required;

l. failing to have a sufficient number of employees to maintain the prescribed level of husbandry practices and care;

m. failing to ensure that the floors, walls, and ceilings of indoor housing facilities and other surfaces coming in contact with animals are impervious to moisture;

n. failing to handle animals in a manner which does not cause trauma, behavioral stress, physical harm, and unnecessary discomfort;

o. failing to ensure that housing facilities for dogs and areas used for storing animal food are free of an accumulation of trash, waste material, junk, and other discarded materials;

*33 p. failing to provide each dog housed in an enclosure with an adequate amount of floor space;

q. failing to provide indoor housing facilities for dogs which are sufficiently ventilated and lighted well enough to provide for their health and well-being and to allow routine inspection and cleaning of the facility, and observation of the dogs;

r. failing to individually identify all dogs on the premises by means of an identification tag or a legible tattoo; and

s. failing to maintain a means of direct and frequent communication with an attending veterinarian so as to ensure that timely and accurate information affecting an animal's health and well-being is accurately conveyed to the attending veterinarian.

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

PARAGRAPH II

Respondent David M. Zimmerman is assessed a civil penalty of $51,250 which shall be paid by certified check or money order made payable to the Treasurer of the United States and forwarded within 60 days after service of this Order on Respondent to:

Frank Martin, Jr.

United States Department of Agriculture

Office of the General Counsel

Room 2014 South Building

Washington, D.C. 20250-1417

The certified check or money order shall indicate that payment is in reference to AWA Docket No. 94-0015.

PARAGRAPH III

Respondent's Animal Welfare Act license is hereby suspended, effective on the 30th day after service of this Order on Respondent, for a period of 60 days, and continuing thereafter until Respondent demonstrates to APHIS 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. It is Respondent's responsibility to contact APHIS to arrange for an inspection of his facility in order to demonstrate that he is in compliance with the Animal Welfare Act and the Regulations and Standards. When Respondent demonstrates to APHIS 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 Complainant, terminating the suspension of Respondent's Animal Welfare Act license.

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 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 Volpe Vito, Inc., 56 Agric. Dec. ___, slip op. at 4 n.4 (Jan. 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).

FN3 In re John Walker, 56 Agric. Dec. ___, slip op. at 21 (Mar. 21, 1997); In re Mary Meyers, 56 Agric. Dec. ___, slip op. at 31 (Mar. 13, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. ___, slip op. at 106 (Jan. 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 142 (1996); In re Pet Paradise, Inc., supra, 51 Agric. Dec. at 1070.

FN4 See, e.g., Richardson v. Perales, 402 U.S. 389, 409-10 (1971); Bennett v. National Transp. Safety Bd., 66 F.3d 1130, 1137 (10th Cir. 1995); Crawford v. United States Dep't of Agric., 50 F.3d 46, 49 (D.C. Cir.), cert. denied, 116 S.Ct. 88 (1995); Gray v. United States Dep't of Agric., 39 F.3d 670, 676 (6th Cir. 1994); Evosevich v. Consolidation Coal Co., 789 F.2d 1021, 1025 (3d Cir. 1986); Sears v. Department of the Navy, 680 F.2d 863, 866 (1st Cir. 1982); Hoska v. United States Dep't of the Army, 677 F.2d 131, 138-39 (D.C. Cir. 1982); Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980), cert. denied, 452 U.S. 906 (1981).

FN5 In re Saulsbury Enterprises, 56 Agric. Dec. ___, slip op. at 6 (Jan. 29, 1997) (Order Denying Petition for Reconsideration); In re John T. Gray (Decision as to Glen Edward Cole) 55 Agric. Dec. 853, 871 (1996); In re Mike Thomas, 55 Agric. Dec. 800, 822-23 (1996); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 136 (1996); In re Jim Fobber, 55 Agric. Dec. 60, 69 (1996); In re DiCarlo Distributors, Inc., 53 Agric. Dec. 1680, 1704 (1994), appeal withdrawn, No. 94-4218 (2d Cir. June 21, 1995); In re Richard Marion, D.V.M., 53 Agric. Dec. 1437, 1463 (1994); In re Dane O. Petty, 43 Agric. Dec. 1406, 1466 (1984), aff'd, No. 3-84-2200-R (N.D. Tex. June 5, 1986); In re De Graaf Dairies, Inc., 41 Agric. Dec. 388, 427 n.39 (1982), aff'd, No. 82-1157 (D.N.J. Jan. 24, 1983), aff'd mem., 725 F.2d 667 (3d Cir. 1983); In re Richard L. Thornton, 38 Agric. Dec. 1425, 1435 (Remand Order), final decision, 38 Agric. Dec. 1539 (1979); In re Maine Potato Growers, Inc., 34 Agric. Dec. 773, 791-92 (1975), aff'd, 540 F.2d 518 (1st Cir. 1976); In re Marvin Tragash Co., 33 Agric. Dec. 1884, 1894 (1974), aff'd, 524 F.2d 1255 (5th Cir. 1975).

FN6 In re Barry Glick, 55 Agric. Dec. 275, 282 (1996); In re Jeremy Byrd, 55 Agric. Dec. 443, 448 (1996); In re Bama Tomato Co., 54 Agric. Dec. 1334, 1342 (1995), aff'd, No. 95-6778 (11th Cir. May 29, 1997); In re Stimson Lumber Co., 54 Agric. Dec. 155, 166 n.5 (1995); In re Johnny E. Lewis, 53 Agric. Dec. 1327, 1354-55 (1994), aff'd in part, rev'd & remanded in part, 73 F.3d 312 (11th Cir. 1996), decision on remand, 55 Agric. Dec. 246 (1996), aff'd per curiam sub nom. Morrison v. Secretary of Agric., No. 96- 6589 (11th Cir. Mar. 27, 1997) (unpublished); In re Craig Lesser, 52 Agric. Dec. 155, 167 (1993), aff'd, 34 F.3d 1301 (7th Cir. 1994); In re Rudolph J. Luscher, 51 Agric. Dec. 1026, 1026 (1992); In re Lloyd Myers Co., 51 Agric. Dec. 782, 783 (1992) (Order Denying Petition for Reconsideration), aff'd, 15 F.3d 1086 (9th Cir. 1994), 1994 WL 20019 (9th Cir. 1994) (not to be cited as precedent under 9th Circuit Rule 36-3), printed in 53 Agric. Dec. 686 (1994); In re Van Buren County Fruit Exchange, Inc., 51 Agric. Dec. 733, 740 (1992); In re Conesus Milk Producers, 48 Agric. Dec. 871, 880 (1989); In re James W. Hickey, 47 Agric. Dec. 840, 851 (1988), aff'd, 878 F.2d 385 (9th Cir. 1989), 1989 WL 71462 (9th Cir. 1989) (not to be cited as precedent under 9th Circuit Rule 36-3), printed in 48 Agric. Dec. 107 (1989); In re Dean Daul, 45 Agric. Dec. 556, 565 (1986); In re E. Digby Palmer, 44 Agric. Dec. 248, 253 (1985); In re Evans Potato Co., 42 Agric. Dec. 408, 409-10 (1983); In re Richard "Dick" Robinson, 42 Agric. Dec. 7 (1983), aff'd, 718 F.2d 336 (10th Cir. 1983); In re Daniel M. Winger, 38 Agric. Dec. 182, 187 (1979), appeal dismissed, No. 79-C-126 (W.D. Wis. June 1979); In re Lamers Dairy, Inc., 36 Agric. Dec. 265, 289 (1977), aff'd sub nom. Lamers Dairy, Inc. v. Bergland, No. 77-C-173 (E.D. Wis. Sept. 28, 1977), printed in 36 Agric. Dec. 1642, aff'd, 607 F.2d 1007 (7th Cir. 1979), cert. denied, 444 U.S. 1077 (1980).

FN7 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.

FN8 I found that Complainant proved its case by a preponderance of the evidence with respect to 75 violations alleged in the Complaint. Complainant could have sought to have assessed a maximum civil penalty of $2,500 for each of these 75 violations, for a total civil penalty of $187,500.

 

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