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

In re: JAMES E. STEPHENS AND WATER WHEEL EXOTICS, INC.
United States
58 Agric. Dec. 149 (1999)


Case Details
Printable Version
Summary:   Ongoing pattern of violations establishes "history of previous violations" for purposes of 7 USCS § 2149(b).

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, Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations and standards issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-3.142) [hereinafter the Regulations and Standards]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice], by filing a Complaint on April 16, 1998.

The Complaint alleges that James E. Stephens and Water Wheel Exotics, Inc. [hereinafter Respondents], willfully violated the Animal Welfare Act and the Regulations and Standards. On May 11, 1998, Respondents filed Answer to Complaint in which they denied the material allegations of the Complaint.

Administrative Law Judge Edwin S. Bernstein [hereinafter the ALJ] presided over a hearing on October 6 and 7, 1998, in Pittsburgh, Pennsylvania. Frank Martin, Jr., Office of the General Counsel, United States Department of Agriculture [hereinafter USDA], represented Complainant. Matthew A. Hartley, represented Respondents.

On December 14, 1998, Complainant filed Complainant's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof [hereinafter Complainant's Brief]; on December 22, 1998, Respondents filed Respondents' Post Hearing Written Submissions; on December 29, 1998, Respondents filed Respondents Reply Brief; and on January 4, 1999, Complainant filed Complainant's Reply Brief.

On January 29, 1999, the ALJ issued a Decision and Order [hereinafter Initial Decision and Order] in which the ALJ: (1) concluded that Respondents willfully violated the Animal Welfare Act and the Regulations and Standards; (2) directed Respondents to cease and desist from violating the Animal Welfare Act and the Regulations and Standards; (3) assessed Respondents a $32,000 civil penalty; and (4) permanently disqualified Respondents from obtaining an Animal Welfare Act license (Initial Decision and Order at 7-12, 33-35).

On March 10, 1999, Respondents appealed to, and requested oral argument before, the Judicial Officer; on May 4, 1999, Complainant filed Complainant's Memorandum in Response to Appeal; and on May 5, 1999, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for a ruling on Respondents' request for oral argument and decision.

Respondents' 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 Complainant and Respondents have thoroughly addressed the issues and the issues are not complex; thus, oral argument would appear to serve no useful purpose.

*3 Based upon a careful consideration of the record in this proceeding, I agree with the ALJ's Initial Decision and Order; except that I do not find that Complainant proved by a preponderance of the evidence [FN1] that on March 25, 1998, Respondents violated 9 C.F.R. §§ 3.125(a), (c), .127(c), .128, and .131(a). Therefore, pursuant to the Rules of Practice (7 C.F.R. § 1.145(i)), I adopt the Initial Decision and Order as the final Decision and Order, with modifications to reflect my finding that Complainant did not prove by a preponderance of the evidence that Respondents violated 9 C.F.R. §§ 3.125(a), (c), .127(c), .128, and .131(a) on March 25, 1998. Additional conclusions by the Judicial Officer follow the ALJ's discussion, as restated.

Complainant's exhibits are referred to as "CX", and the hearing transcript is referred to as "Tr."

APPLICABLE STATUTORY PROVISIONS, REGULATIONS, AND STANDARDS

7 U.S.C.:

TITLE 7--AGRICULTURE

. . . .

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

. . . .

§ 2132. Definitions

When used in this chapter--

. . . .

(h) The term "exhibitor" means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not[.]

§ 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.

. . . .

§ 2146. Administration and enforcement by Secretary

(a) Investigations and inspections

The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter or any regulation or standard issued thereunder, and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and those records required to be kept pursuant to section 2140 of this title of any such dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale. . . . The Secretary shall promulgate such rules and regulations as he deems necessary to permit inspectors to confiscate or destroy in a humane manner any animal found to be suffering as a result of a failure to comply with any provision of this chapter or any regulation or standard issued thereunder if (1) such animal is held by a dealer, (2) such animal is held by an exhibitor, (3) such animal is held by a research facility and is no longer required by such research facility to carry out the research, test, or experiment for which such animal has been utilized, (4) such animal is held by an operator of an auction sale, or (5) such animal is held by an intermediate handler or a carrier.

*4 § 2151. Rules and regulations

The Secretary is authorized to promulgate such rules, regulations, and orders as he may deem necessary in order to effectuate the purposes of this chapter.

7 U.S.C. §§ 2132(h), 2140, 2146(a), 2151.

9 C.F.R.:

TITLE 9--ANIMALS AND ANIMAL PRODUCTS

CHAPTER I--ANIMAL AND PLANT HEALTH INSPECTION SERVICE,

DEPARTMENT OF AGRICULTURE

SUBCHAPTER A--ANIMAL WELFARE

PART 1--DEFINITION OF TERMS

§ 1.1 Definitions.

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

. . . .

Exhibitor means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary. This term includes carnivals, circuses, animal acts, zoos, and educational exhibits, exhibiting such animals whether operated for profit or not.

. . . .

PART 2--REGULATIONS

. . . .

SUBPART D--ATTENDING VETERINARIAN AND ADEQUATE VETERINARY CARE

§ 2.40 Attending veterinarian and adequate veterinarian 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;

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

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

. . . .

SUBPART G--RECORDS

 

§ 2.75 Records: Dealers and exhibitors.

. . . .

(b)(1) Every dealer other than operators of auction sales and brokers to whom animals are consigned, and exhibitor shall make, keep, and maintain records or forms which fully and correctly disclose the following information concerning animals other than dogs and cats, purchased or otherwise acquired, owned, held, leased, or otherwise in his or her possession or under his or her control, or which is transported, sold, euthanized, or otherwise disposed of by that dealer or exhibitor. 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 the animals were purchased or otherwise acquired;

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

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

(iv) The name and address of the person to whom an animal was sold or given;

(v) The date of purchase, acquisition, sale, or disposal of the animal(s);

(vi) The species of the animal(s); and

(vii) The number of animals in the shipment.

. . . .

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.

. . . .

SUBPART I--MISCELLANEOUS

. . . .

§ 2.126 Access and inspection of records and property.

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

(1) To enter its place of business;

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

(3) To make copies of the records;

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

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

. . . .

§ 2.129 Confiscation and destruction of animals.

(a) If an animal being held by a dealer, exhibitor, intermediate handler, or by a carrier is found by an APHIS official to be suffering as a result of the failure of the dealer, exhibitor, intermediate handler, or carrier to comply with any provision of the regulations or the standards set forth in this subchapter, the APHIS official shall make a reasonable effort to notify the dealer, exhibitor, intermediate handler, or carrier of the condition of the animal(s) and request that the condition be corrected and that adequate care be given to alleviate the animal's suffering or distress, or that the animal(s) be destroyed by euthanasia. In the event that the dealer, exhibitor, intermediate handler, or carrier refuses to comply with this request, the APHIS official may confiscate the animal(s) for care, treatment, or disposal as indicated in paragraph (b) of this section, if, in the opinion of the Administrator, the circumstances indicate the animal's health is in danger.

*6 . . . .

PART 3--STANDARDS

. . . .

SUBPART F--SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT, AND TRANSPORTATION OF WARMBLOODED ANIMALS OTHER THAN DOGS, CATS, RABBITS, HAMSTERS, GUINEA PIGS, NONHUMAN PRIMATES, AND MARINE MAMMALS

FACILITIES AND OPERATING STANDARDS

§ 3.125 Facilities, general.

(a) Structural strength. The facility must be constructed of such material and of such strength as appropriate for the animals involved. The indoor and outdoor housing facilities shall be structurally sound and shall be maintained in good repair to protect the animals from injury and to contain the animals.

. . . .

(c) Storage. Supplies of food and bed- ding shall be stored in facilities which adequately protect such supplies against deterioration, molding, or contamination by vermin. Refrigeration shall be provided for supplies of perishable food.

(d) Waste disposal. Provision shall be made for the removal and disposal of animal and food wastes, bedding, dead animals, trash and debris. Disposal facilities shall be so provided and operated as to minimize vermin infestation, odors, and disease hazards. The disposal facilities and any disposal of animal and food wastes, bedding, dead animals, trash, and debris shall comply with applicable Federal, State, and local laws and regulations relating to pollution control or the protection of the environment.

. . . .

§ 3.126 Facilities, indoor.

. . . .

(b) Ventilation. Indoor housing facilities shall be adequately ventilated by natural or mechanical means to provide for the health and to prevent discomfort of the animals at all times. Such facilities shall be provided with fresh air either by means of windows, doors, vents, fans, or air- conditioning and shall be ventilated so as to minimize drafts, odors, and moisture condensation.

(c) Lighting. Indoor housing facilities shall have ample lighting, by natural or artificial means, or both, of good quality, distribution, and duration as appropriate for the species involved. Such lighting shall be uniformly distributed and of sufficient intensity to permit routine inspection and cleaning. Lighting of primary enclosures shall be designed to protect the animals from excessive illumination.

. . . .

§ 3.127 Facilities, outdoor.

. . . .

(c) Drainage. A suitable method shall be provided to rapidly eliminate excess water. The method of drainage shall comply with applicable Federal, State, and local laws and regulations relating to pollution control or the protection of the environment.

§ 3.128 Space requirements.

Enclosures shall be constructed and maintained so as to provide sufficient space to allow each animal to make normal postural and social adjustments with adequate freedom of movement. Inadequate space may be indicated by evidence of malnutrition, poor condition, debility, stress, or abnormal behavior patterns.

ANIMAL HEALTH AND HUSBANDRY STANDARDS

*7 § 3.129 Feeding.

(a) The food shall be wholesome, palatable, and free from contamination and of sufficient quantity and nutritive value to maintain all animals in good health. The diet shall be prepared with consideration for the age, species, condition, size, and type of the animal. Animals shall be fed at least once a day except as dictated by hibernation, veterinary treatment, normal fasts, or other professionally accepted practices.

. . . .

§ 3.131 Sanitation.

(a) Cleaning of enclosures. Excreta shall be removed from primary enclosures as often as necessary to prevent contamination of the animals contained therein and to minimize disease hazards and to reduce odors. When enclosures are cleaned by hosing or flushing, adequate measures shall be taken to protect the animals confined in such enclosures from being directly sprayed with the stream of water or wetted involuntarily.

. . . .

(d) Pest control. A safe and effective program for the control of insects, ectoparasites, and avian and mammalian pests shall be established and maintained.

9 C.F.R. §§ 1.1; 2.40, .75(b)(1), .100(a), .126(a), .129(a); 3.125(a), (c)- (d) .126(b)-(c), .127(c), .128, .129(a), .131(a), (d).

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION AND ORDER (AS RESTATED)

Findings of Fact

1. Respondent James E. Stephens is an individual with a mailing address of RD 2, Box 297-A, 1034 Old Ridge Road, Avella, Pennsylvania 15312 (CX 57, CX 61; Tr. 17, 337).

2. Respondent Water Wheel Exotics, Inc., is a corporation and has the same mailing address as Respondent James E. Stephens (CX 57, CX 61; Tr. 389-90).

3. During the period December 10, 1997, through March 30, 1998, Respondents were licensed and operating as an exhibitor as defined in the Animal Welfare Act and the Regulations and the actions of Respondent Water Wheel Exotics, Inc., were directed, managed, and controlled by Respondent James E. Stephens (CX 57, CX 58, CX 61; Tr. 389-90). Respondents are not currently licensed under the Animal Welfare Act.

4. From December 10, 1997, through March 30, 1998, Respondents' facility and animals were inspected by experienced veterinary medical officers and experienced animal care inspectors employed by the Animal and Plant Health Inspection Service [hereinafter APHIS], USDA. Respondents' animals were also examined by the chief veterinarian for the Cleveland Metro Park Zoo. (Tr. 14- 19, 26-27, 56-61, 81-87, 265-68, 278-89.) These inspections revealed that Respondents were not in compliance with the Animal Welfare Act and the Regulations and Standards (CX 1-CX 53). After each inspection, APHIS employees informed Respondents that the inspections had disclosed violations of the Animal Welfare Act and the Regulations and Standards (Tr. 19, 85-86). APHIS employees prepared an inspection report after each inspection and gave Mr. Stephens a copy of the inspection report (Tr. 423). Each inspection report served as a written notice to Respondents that the APHIS employees found that certain items were not in compliance with the Animal Welfare Act and the Regulations and Standards (Tr. 88- 89).

*8 5. On December 10, 1997, APHIS employees inspected Respondents' facility and animals and found that Respondents had 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 1 at 3; Tr. 103-05).

6. On December 10, 1997, APHIS employees inspected Respondents' facility and records and found that Respondents had failed to maintain complete records showing the acquisition and disposition of animals (CX 1 at 2; Tr. 102-03).

7. On December 10, 1997, APHIS employees inspected Respondents' facility and animals (CX 1-CX 12; Tr. 91-115) and found that:

A. Provisions were not made for the removal and disposal of animal and food wastes so as to minimize vermin infestation, odors, and disease hazards;

B. Indoor housing facilities did not have lighting sufficient to permit routine inspection and cleaning;

C. A suitable method was not provided to rapidly eliminate excess water from outdoor facilities for animals;

D. Supplies of food were not stored so as to adequately protect the supplies of food against deterioration, molding, or contamination by vermin;

E. Animals were not provided with wholesome and uncontaminated food;

F. Primary enclosures were not kept clean, as required; and

G. An effective program for the control of pests was not established and maintained.

8. On February 9, 1998, APHIS employees inspected Respondents' facility and animals and found that Respondents had 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 13 at 4; Tr. 118-20).

9. On February 9, 1998, APHIS employees inspected Respondents' facility and animals (CX 13-CX 26; Tr. 116-42) and found that:

A. Provisions were not made for the removal and disposal of animal and food wastes so as to minimize vermin infestation, odors, and disease hazards;

B. Indoor housing facilities were not adequately ventilated to provide for the health and comfort of the animals at all times;

C. A suitable method was not provided to rapidly eliminate excess water from outdoor facilities for animals;

D. Supplies of food were not stored so as to adequately protect the supplies of food against deterioration, molding, or contamination by vermin;

E. Animals were not provided with wholesome and uncontaminated food;

F. Primary enclosures were not kept clean, as required; and

G. An effective program for the control of pests was not established and maintained.

10. On March 23, 1998, APHIS employees inspected Respondents' facility and animals and found that Respondents had 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 27 at 3; Tr. 153-55).

*9 11. On March 23, 1998, APHIS employees inspected Respondents' facility and records and found that Respondents had failed to maintain complete records showing the acquisition and disposition of animals (CX 27 at 1; Tr. 144-45).

12. On March 23, 1998, APHIS employees inspected Respondents' facility and animals (CX 27-CX 41; Tr. 142-67) and found that:

A. Housing facilities for animals were not structurally sound and maintained in good repair so as to protect the animals from injury and to contain the animals;

B. Provisions were not made for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards;

C. Supplies of food were not stored so as to adequately protect the supplies of food against deterioration, molding, or contamination by vermin;

D. A suitable method was not provided to rapidly eliminate excess water from outdoor facilities for animals;

E. Animals were not provided with wholesome and uncontaminated food;

F. Primary enclosures were not kept clean, as required;

G. An effective program for the control of pests was not established and maintained; and

H. Enclosures for animals were not constructed and maintained so as to provide sufficient space to allow each animal to make normal postural and social adjustments with adequate freedom of movement.

13. On March 25, 1998, APHIS employees inspected Respondents' facility and animals and found that Respondents had 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 42 at 2; Tr. 170-71).

14. On March 25, 1998, Respondents refused to permit APHIS officials to conduct a complete inspection of Respondents' facility (CX 42 at 2; Tr. 171- 72).

15. On March 25, 1998, APHIS employees inspected Respondents' facility and animals (CX 42-CX 47; Tr. 167-74) and found that:

A. Provisions were not made for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards;

B. Animals were not provided with wholesome and uncontaminated food; and

C. An effective program for the control of pests was not established and maintained.

16. On March 30, 1998, APHIS employees inspected Respondents' facility and animals and found that Respondents had 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 48-CX 50; Tr. 174-77).

17. On March 30, 1998, Respondents refused to permit APHIS officials to conduct a complete inspection of Respondents' facility (CX 48; Tr. 177).

Conclusions of Law

1. The Secretary of Agriculture has jurisdiction in this matter.

2. Respondents are an exhibitor as defined in the Animal Welfare Act and the Regulations.

*10 3. On December 10, 1997, Respondents willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) 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 by failing to provide veterinary care to animals in need of care.

4. On December 10, 1997, Respondents willfully violated section 10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(b)(1) of the Regulations (9 C.F.R. § 2.75(b)(1)) by failing to maintain complete records showing the acquisition and disposition of animals.

5. On December 10, 1997, Respondents willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and the Standards specified below:

A. Provisions were not made for the removal and disposal of animal and food wastes so as to minimize vermin infestation, odors, and disease hazards (9 C.F.R. § 3.125(d));

B. Indoor housing facilities did not have lighting sufficient to permit routine inspection and cleaning (9 C.F.R. § 3.126(c));

C. A suitable method was not provided to rapidly eliminate excess water from outdoor facilities for animals (9 C.F.R. § 3.127(c));

D. Supplies of food were not stored so as to adequately protect the supplies of food against deterioration, molding, or contamination by vermin (9 C.F.R. § 3.125(c));

E. Animals were not provided with wholesome and uncontaminated food (9 C.F.R. § 3.129(a));

F. Primary enclosures were not kept clean, as required (9 C.F.R. § 3.131(a)); and

G. An effective program for the control of pests was not established and maintained (9 C.F.R. § 3.131(d)).

6. On February 9, 1998, Respondents willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) 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 by failing to provide veterinary care to animals in need of care.

7. On February 9, 1998, Respondents willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and the Standards specified below:

A. Provisions were not made for the removal and disposal of animal and food wastes so as to minimize vermin infestation, odors, and disease hazards (9 C.F.R. § 3.125(d));

B. Indoor housing facilities were not adequately ventilated to provide for the health and comfort of the animals at all times (9 C.F.R. § 3.126(b));

C. A suitable method was not provided to rapidly eliminate excess water from outdoor facilities for animals (9 C.F.R. § 3.127(c));

D. Supplies of food were not stored so as to adequately protect the supplies of food against deterioration, molding, or contamination by vermin (9 C.F.R. § 3.125(c));

E. Animals were not provided with wholesome and uncontaminated food (9 C.F.R. § 3.129(a));

F. Primary enclosures were not kept clean, as required (9 C.F.R. § 3.131(a)); and

*11 G. An effective program for the control of pests was not established and maintained (9 C.F.R. § 3.131(d)).

8. On March 23, 1998, Respondents willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) 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 by failing to provide veterinary care to animals in need of care.

9. On March 23, 1998, Respondents willfully violated section 10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(b)(1) of the Regulations (9 C.F.R. § 2.75(b)(1)) by failing to maintain complete records showing the acquisition and disposition of animals.

10. On March 23, 1998, Respondents willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and the Standards specified below:

A. Housing facilities for animals were not structurally sound and maintained in good repair so as to protect the animals from injury and to contain the animals (9 C.F.R. § 3.125(a));

B. Provisions were not made for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards (9 C.F.R. § 3.125(d));

C. Supplies of food were not stored so as to adequately protect the supplies of food against deterioration, molding, or contamination by vermin (9 C.F.R. § 3.125(c));

D. A suitable method was not provided to rapidly eliminate excess water from outdoor facilities for animals (9 C.F.R. § 3.127(c));

E. Animals were not provided with wholesome and uncontaminated food (9 C.F.R. § 3.129(a));

F. Primary enclosures were not kept clean, as required (9 C.F.R. § 3.131(a));

G. An effective program for the control of pests was not established and maintained (9 C.F.R. § 3.131(d)); and

H. Enclosures for animals were not constructed and maintained so as to provide sufficient space to allow each animal to make normal postural and social adjustments with adequate freedom of movement (9 C.F.R. § 3.128).

11. On March 25, 1998, Respondents willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) 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 by failing to provide veterinary care to animals in need of care.

12. On March 25, 1998, Respondents willfully violated section 16(a) of the Animal Welfare Act (7 U.S.C. § 2146(a)) and section 2.126(a) of the Regulations (9 C.F.R. § 2.126(a)) by refusing to permit APHIS officials to conduct a complete inspection of Respondents' facility.

13. On March 25, 1998, Respondents willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and the Standards specified below:

A. Provisions were not made for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards (9 C.F.R. § 3.125(d));

*12 B. Animals were not provided with wholesome and uncontaminated food (9 C.F.R. § 3.129(a)); and

C. An effective program for the control of pests was not established and maintained (9 C.F.R. § 3.131(d)).

14. On March 30, 1998, Respondents willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) 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 by failing to provide veterinary care to animals in need of care.

15. On March 30, 1998, Respondents willfully violated section 16(a) of the Animal Welfare Act (7 U.S.C. § 2146(a)) and section 2.126(a) of the Regulations (9 C.F.R. § 2.126(a)) by refusing to permit APHIS officials to conduct a complete inspection of Respondents' facility.

Discussion

I. Jurisdiction

In Respondents' Answer to Complaint, Respondents admitted the jurisdictional allegations contained in paragraphs I(A) and I(C) of the Complaint. Respondents denied the portion of the allegation contained in paragraph I(B) of the Complaint that Water Wheel Exotics, Inc., is a corporation. However, at the hearing, Mr. Stephens testified that Water Wheel Exotics, Inc., was a corporation and that he was the only owner (Tr. 389-90). Therefore, jurisdiction is not an issue in this proceeding.

II. The Violations of the Animal Welfare Act and the Regulations and Standards

I found the testimony of Complainant's witnesses to be credible. I was particularly impressed with the testimonies of Drs. Norma Jean Harlan, Kurt Hammel, and Albert Lewandowski. I found them to be thorough and consistent in testifying, and I believe they testified truthfully. The only witness that Respondents presented to dispute the alleged violations, with the exception of the failure to allow inspection violations, was Respondent James E. Stephens. He did not deny many of the allegations in the Complaint and where he disputed Complainant's witnesses, I found him less credible than Complainant's witnesses.

1. The APHIS Inspection on December 10, 1997

On December 10, 1997, an experienced veterinary medical officer, Dr. Harlan, inspected Respondents' facility and found that Respondents' facility did not comply with the Animal Welfare Act and the Regulations and Standards (CX 1-CX 12; Tr. 81-115). Dr. Harlan testified in detail to her normal inspection procedure (Tr. 83-85). She testified further that she had an opportunity to review the December 10, 1997, inspection report (CX 1) with Respondents as part of the process of educating and communicating with Animal Welfare Act licensees (Tr. 85-87, 91). Dr. Harlan testified that she observed the following deficiencies:

a. Failure to store food properly

Dr. Harlan testified that she observed deer carcasses for the large cats stored on the ground uncovered and exposed to the elements (CX 1 at 1, CX 2; Tr. 91-92, 106). She also observed hay that was wet and exposed to the weather (CX 1 at 1, CX 3; Tr. 93, 107). Finally, she observed outdated dairy products being stored at room temperature in open barrels and open barrels of feed (CX 1 at 1, CX 6; Tr. 93-94, 108-09). Dr. Harlan characterized a failure to store food properly as a serious deficiency because food is one of the major elements of animal care. Dr. Harlan also testified that a failure to store food properly risks contamination and deterioration of the food and that contaminated or deteriorated food fed to animals could impair the health of the animals. Dr. Harlan discussed Respondents' failures to store food properly with Mr. Stephens and instructed him on how food should be stored. (Tr. 92-94.)

*13 Mr. Stephens testified that he picked up the deer carcasses the night before the inspection and the following morning he put them on the ground until he returned at 10 a.m. (Tr. 338-39). He stated that he usually butchers carcasses within 8 hours after finding them and if he feels a carcass is "not right," he does not feed the carcass to Respondents' animals. (Tr. 339-40.) Mr. Stephens claimed that he would not feed the dairy products to Respondents' animals if the dairy products were bad (Tr. 394). However, he acknowledged that there was "bad hay" (Tr. 358-60).

When Dr. Albert Lewandowski, the chief veterinarian for the Cleveland Metro Park Zoo, was asked about Respondents' deer carcass storage practices, he responded:

A. This is the storage? I mean, it looks to me like they're laying in the middle of the road. I mean, if I were feeding carcasses, and there's nothing wrong with feeding fresh carcass, it should be refrigerated. It should be cleaned. I wouldn't have it laying in the middle of the aisle.

It appears that there's massive fecal contamination. It also appears that some of these bodies are a little less than fresh. You can see some drying of the eyes and some glazing. You can see a couple of these carcasses. They are wet, but they also look as though they've been sitting for awhile. As they sit, they get slimy. It has a sheen that would indicate that, and they're laying in what looks to be a manure contaminated driveway. I mean, this isn't -- this is no way to keep food.

Tr. 290.

Dr. Lewandowski also testified that the dairy products should have been refrigerated if they were going to be fed to the animals and should not be fed 2 days past the expiration date (Tr. 291-92).

b. Failure to remove and dispose of animal and food wastes

Dr. Harlan testified that she observed open barrels of waste in the lower garage area (CX 1 at 1, CX 5; Tr. 94) and six deer carcasses lying in the alleyway in the cat area (CX 2; Tr. 95). She characterized a failure to remove and dispose of waste as a significant deficiency because proper waste disposal is a key component of good animal husbandry in order to avoid disease transmission (Tr. 95). She instructed Mr. Stephens to dispose of the waste in a safe manner away from the animals (Tr. 95).

Mr. Stephens testified that he did not have the ability to remove the open barrels of waste in the lower garage area and could not get to the pit in which he disposes of bad deer carcasses (Tr. 357, 359). However, Mr. Stephens never offered any specific explanations for his inability to dispose of animal and food waste on December 10, 1997.

c. Failure to have ample lighting in an indoor housing facility

Dr. Harlan testified that she observed inadequate lighting in the upper barn behind the house (CX 1 at 1; Tr. 95). She testified further that this condition made examination of a black pig without using a flashlight difficult. Dr. Harlan told Mr. Stephens to repair any broken lights so he could examine Respondents' animals daily. (Tr. 96.) Mr. Stephens acknowledged that in cold weather some of Respondents' neon lights do not work. He agreed that Dr. Harlan did identify one light that was not working. (Tr. 358.)

*14 d. Failure to provide adequate drainage for housing facilities

Dr. Harlan testified that she observed camels in an enclosure having difficulty reaching their food and water because the enclosure was full of mud and muck (CX 1 at 2, CX 7; Tr. 96- 97). She was concerned that this condition could affect the camels' health and asked Mr. Stephens to move the camels to a dryer enclosure (Tr. 97-98). Dr. Harlan also observed that many of the large cat pens had standing water in them (CX 8; Tr. 98).

Dr. Lewandowski testified about the methods Respondents could have employed to improve the drainage in their animal housing facilities. He also testified regarding the importance of proper drainage in maintaining an animal's health and preventing the transmission of diseases. (Tr. 295-99.)

Mr. Stephens acknowledged that there were drainage problems at Respondents' facility (Tr. 345-48, 352).

e. Failure to provide wholesome and uncontaminated food

Dr. Harlan testified that she observed a carcass being quartered and a quarter of the carcass being dragged through the dirt into the cat enclosure to provide feed for the big cats (CX 1 at 2; Tr. 98). She testified that the meat was very contaminated. Dr. Harlan characterized carcasses dragged through dirt as totally unacceptable as feed because any number of diseases can be transmitted by contaminated meat which could kill the animals. (Tr. 98.) She also testified that there were other feeding problems at Respondents' facility (CX 1 at 2, CX 6, CX 9). Dr. Harlan instructed Mr. Stephens as to methods by which to provide wholesome and uncontaminated food to Respondents' animals (Tr. 99).

Mr. Stephens did not refute Dr. Harlan's testimony on these specific feeding issues. In fact, Mr. Stephens acknowledged that dragging carcasses to the cat enclosure was inappropriate (Tr. 393).

f. Failure to adequately clean animal enclosures

Dr. Harlan testified that she observed numerous animal enclosures that were in need of cleaning (CX 1 at 2, CX 10; Tr. 99-100, 111-12). She testified further that the failure to clean enclosures was a significant deficiency that could affect the animals' health (Tr. 100). Dr. Harlan told Mr. Stephens that the enclosures needed to be cleaned immediately and maintained in a clean condition (Tr. 101). Photographs taken during the December 10, 1997, inspection clearly show enclosures that were in need of cleaning (CX 10; Tr. 111-12).

g. Failure to provide adequate pest control

Dr. Harlan testified that she observed several large, fresh rodent holes in the lower barn, the upper barn, and the big cat area (CX 1 at 2, CX 11; Tr. 101-02). Dr. Harlan was concerned for the health of Respondents' animals because rodents can transmit diseases to the animals. She told Mr. Stephens that he needed to start filling in the rodent holes so that he could determine if he was eliminating the rodents. (Tr. 101-02.) Mr. Stephens acknowledged that Respondents had difficulty controlling rodents (Tr. 356).

*15 h. Failure to maintain proper records

Dr. Harlan testified that when she examined Respondents' records there was information required to be kept by the Regulations concerning the source of animals that was not recorded in Respondents' records (CX 1 at 2; Tr. 102). In addition, one of the two tiger cubs listed as being born was not at Respondents' facility and its disposition was not recorded in Respondents' records (CX 1 at 2; Tr. 102).

Mr. Stephens acknowledged that Respondents' records did not contain the required information (Tr. 356-57). Mr. Stephens did not address the disposition of the tiger cub.

i. Failure to provide adequate veterinary care

Dr. Harlan testified that she observed several problems with veterinary care at Respondents' facility. There was a goat with an abscess on its right jaw (CX 12 at 1; Tr. 104); a yak whose fur was heavily crusted with burrs and mats (CX 12 at 2-3; Tr. 104); a tiger named "Timberland" that was limping and very sensitive on both front paws (Tr. 104); and a reindeer that was very thin and in need of hoof trimming (CX 12 at 3-6; Tr. 104). Dr. Harlan characterized the failure to provide veterinary care to animals in need of care as a serious deficiency and instructed Mr. Stephens to seek veterinary care for the animals and to clip the yak (Tr. 105).

Mr. Stephens testified that the tiger named "Timberland" had been treated by Respondents' veterinarian, Dr. Sheperd (Tr. 369). This self-serving testimony does not overcome Complainant's substantial and credible evidence. Dr. Sheperd did not appear as a witness for Respondents, and Respondents could not produce any records indicating that the tiger had been treated (Tr. 10, 403).

2. The APHIS Inspection on February 9, 1998

On February 9, 1998, Dr. Harlan inspected Respondents' facility and found that the facility did not comply with the Regulations and Standards (CX 13-CX 26; Tr. 116-42).

a. Failure to provide adequate ventilation

Dr. Harlan testified that there were extremely strong ammonia levels in the basement holding area (CX 13 at 1; Tr. 117). She instructed Mr. Stephens that the ventilation needed to be improved to reduce the ammonia levels (CX 13 at 1).

Mr. Stephens acknowledged that Dr. Harlan did find ammonia levels in the basement holding area, but asserted that he has taken steps to prevent the ventilation problem (Tr. 362). [FN2]

b. Failure to provide adequate veterinary care

Dr. Harlan testified that she observed a young bison in the lower barn that had an excessive number of burrs and knots in its coat (CX 13 at 4, CX 26 at 1- 3; Tr. 118). She also observed that the tiger named "Timberland" was still limping and that Mr. Stephens had not conferred with Respondents' veterinarian on the tiger's current condition (CX 13 at 4; Tr. 118-19). Finally, Dr. Harlan observed three reindeer that were thin and in need of hoof trimming (CX 13 at 4, CX 26 at 4-6; Tr. 119).

*16 Mr. Stephens testified that the tiger named "Timberland" was being treated by Respondents' veterinarian, Dr. Sheperd (Tr. 369). However, Dr. Sheperd did not appear at the hearing, and Respondents were unable to produce any records indicating that the tiger had been treated.

c. Failure to provide wholesome and uncontaminated food

Dr. Harlan testified that she observed that Respondents were feeding brewer's grain to the hoof stock (CX 13 at 2; Tr. 120). She was concerned because brewer's grain lacks the energy content that animals need (CX 13 at 2; Tr. 120). Dr. Harlan also observed that the quality of the hay in the camel, llama, and calf pens, and one reindeer pen, was extremely poor (CX 13 at 2, CX 19; Tr. 121, 135-36). Dr. Harlan observed several carcasses being fed to the large cats that were black and not fresh (CX 13 at 3, CX 20; Tr. 121, 136-37). Finally, Dr. Harlan observed pigs being fed spoiled, clotted milk (CX 13 at 3, CX 21; Tr. 122, 137).

Mr. Stephens testified that he was mixing brewer's grain with another type of grain (Tr. 359, 368). Respondents did not offer corroborating evidence to support Mr. Stephens' assertion. Mr. Stephens acknowledged that Respondents fed "bad hay" to the animals (Tr. 360). Mr. Stephens did not find anything wrong with the carcasses that Respondents fed to the large cats (Tr. 410- 11). The photographs indicate otherwise (CX 20). Finally, Mr. Stephens claimed that he does not feed spoiled, clotted milk to the pigs (Tr. 394). Again, the photographs indicate otherwise (CX 21).

d. Failure to remove and dispose of animal and food wastes

Dr. Harlan testified that she observed a very large pile of manure and debris 15 feet from the upper barn (CX 13 at 2, CX 16; Tr. 123, 132-33). Dr. Harlan was concerned because the manure pile is a haven for rodents, which can carry diseases to Respondents' animals at the facility (Tr. 123). Dr. Harlan also observed open barrels of waste in the large cat area (CX 13 at 2, CX 15 at 1; Tr. 124-25, 131-32).

Mr. Stephens testified that Respondents have had a manure pile for 8 or 10 years and never had a problem with it (Tr. 371- 72). He also testified that waste disposal depends on what day it is and how the weather is (Tr. 361).

Dr. Lewandowski testified that a manure pile of the size maintained by Respondents would have an impact on Respondents' entire facility (Tr. 312). He also testified that rats and mice gravitate to manure piles because they are warm and that there were plenty of rats and mice and evidence of rats and mice in the areas in which Respondents housed the male Bactrian camel and reindeer (Tr. 313).

e. Failure to store food properly

Dr. Harlan testified that she observed carcasses being stored on the ground and exposed to the weather (CX 13 at 2; Tr. 123-24). She also observed meat in freezers that was not protected against spoilage and toxic chemicals stored on a freezer (CX 13 at 2; Tr. 125-26, 131).

*17 Mr. Stephens acknowledged that Respondents had contaminated meat in the freezer (Tr. 367). However, he did not grasp the potential hazards associated with storing food in close proximity to toxic chemicals (Tr. 366-68). Mr. Stephens testified that he does not store carcasses on the ground, but they have to go somewhere (Tr. 393). This testimony illustrates Mr. Stephens inconsistent statements concerning the care and housing of Respondents' animals.

f. Failure to provide adequate drainage for housing facilities

Dr. Harlan testified that she observed two camels standing in deep mud (CX 13 at 3, CX 17; Tr. 126, 133-34). She was concerned because camels are desert animals whose feet are not designed for mud (CX 17; Tr. 126, 133-34). Dr. Harlan also observed standing water and mud in several large cat pens (CX 13 at 3, CX 18; Tr. 126-27, 134-35).

Mr. Stephens acknowledged that there were drainage problems at Respondents' facility (Tr. 345-48, 352).

g. Failure to adequately clean animal enclosures

Dr. Harlan testified that she observed several pens that were in need of cleaning (CX 13 at 3, CX 18, CX 20, CX 21, CX 23, CX 24; Tr. 127-29, 134-36, 139). The photographs taken during the February 9, 1998, inspection clearly show a failure to adequately clean animal enclosures (CX 18, CX 20, CX 21, CX 23, CX 24).

h. Failure to provide adequate pest control

Dr. Harlan testified that she observed evidence of rodent activity in the lower barn, the upper barn, and the big cat area (CX 13 at 3, CX 25; Tr. 129, 139-40). Dr. Harlan was concerned because the steps Respondents had taken to control the rodent activity were insufficient for the size of Respondents' facility (Tr. 130).

Mr. Stephens acknowledged that Respondents' pest control program was "[m]aybe not really effective" (Tr. 360).

3. The APHIS Inspection on March 23, 1998

On March 23, 1998, Dr. Harlan inspected Respondents' facility and found that the facility did not comply with the Animal Welfare Act and the Regulations and Standards (CX 27-CX 41; Tr. 142-65).

a. Failure to maintain proper records

Dr. Harlan testified that the deaths of several of Respondents' animals were not recorded in Respondents' records (CX 27 at 1; Tr. 144). Respondents also had animals in the facility that were not recorded in Respondents' records (Tr. 144- 45).

Mr. Stephens did not dispute the recordkeeping deficiencies identified during the March 23, 1998, inspection.

b. Failure to have structurally sound housing facilities

Dr. Harlan testified that she observed broken wires in the liger pen and loose metal sheets and exposed nails in the llama shelter (CX 27 at 1-2, CX 34, CX 35; Tr. 146-47, 161-63).

Mr. Stephens acknowledged that there were broken wires in the liger pen which he repaired (Tr. 377-78). He did not address the loose metal sheets and exposed nails in the llama shelter.

c. Failure to provide adequate space for animals

*18 Dr. Harlan testified that she observed two tiger cubs in an enclosure that had inadequate space (CX-27 at 2, CX 39; Tr. 147-48, 164, 248-49).

Mr. Stephens acknowledged that the two tiger cubs were in an enclosure that did not provide adequate space (Tr. 396).

Dr. Lewandowski testified that even if the tiger cubs were placed in the enclosure depicted in CX 39 temporarily while their primary enclosures were being cleaned, the enclosure depicted in CX 39 was too small and he would have put the cubs in a larger temporary enclosure (Tr. 303-04).

d. Failure to store food properly

Dr. Harlan observed a bottle of bleach stored with the feed storage containers in the lower barn (CX 27 at 2; Tr. 148). Dr. Harlan also observed problems with three freezers, the most serious of which was the one in the upper garage which had badly decayed and decomposing meat in it (CX-27 at 2, CX 36; Tr. 148- 49, 163).

Mr. Stephens acknowledged that Respondents had contaminated meat in the freezer (Tr. 367).

e. Failure to remove and dispose of animal waste

Dr. Harlan testified that the large pile of manure located by the upper barn that was cited during the February 9, 1998, inspection had not been removed (CX 27 at 2, CX 37; Tr. 149-50, 163-64).

Mr. Stephens testified that Respondents have had a manure pile for 8 or 10 years and never had a problem with it (Tr. 371- 72). He also testified that waste disposal depends on what day it is and how the weather is (Tr. 361).

Dr. Lewandowski testified that a manure pile of the size maintained by Respondents would have an impact on Respondents' entire facility (Tr. 312). He also testified that rats and mice gravitate to manure piles because they are warm and that there were plenty of rats and mice and evidence of rats and mice in the areas in which Respondents housed the male Bactrian camel and reindeer (Tr. 313).

f. Failure to provide adequate drainage for housing facilities

Dr. Harlan testified that she observed two Watusi cattle that could not reach their food or water without wading through deep mud (CX 27 at 2, CX 38; Tr. 150, 164).

Mr. Stephens acknowledged that there were drainage problems at Respondents' facility (Tr. 345-48, 352).

g. Failure to provide wholesome and uncontaminated food

Dr. Harlan testified that she observed the feed for the camels and some other hoof stock that was exposed to the weather (CX 27 at 3; Tr. 151). Dr. Harlan was concerned because continued exposure to weather causes the feed to become moldy and contaminated (Tr. 151).

Dr. Lewandowski testified concerning some of Respondents' poor feeding practices and what Respondents could have done to improve them (Tr. 299-300).

h. Failure to adequately clean animal enclosures

Dr. Harlan testified that she observed feces on the top of the shelter in one tiger pen (CX 27 at 3, CX 40; Tr. 152, 164- 65). She also observed a pig pen that was in need of cleaning (CX 27 at 3, CX 41 at 1; Tr. 152, 165). The photographs taken during the March 23, 1998, inspection clearly show enclosures that were not kept clean (CX 40, CX 41 at 1).

*19 i. Failure to provide adequate pest control

Dr. Harlan testified that she observed several rodent holes in the lower barn feed storage room (CX 27 at 3, CX 41 at 2; Tr. 152-53, 165). She testified further that Respondents' pest control activities were insufficient to keep the rodent population at a minimal level (Tr. 153).

Mr. Stephens acknowledged that Respondents' pest control program was "[m]aybe not really effective" (Tr. 360).

j. Failure to provide adequate veterinary care

Dr. Harlan testified that she observed several goats and a llama that were in need of hoof trimming (CX 27 at 3, CX 33; Tr. 153, 159-61). She also observed that the tiger named "Timberland" was still limping and that Mr. Stephens had no records indicating that the animal was examined or treated by a veterinarian (CX 27 at 3; Tr. 153-54). Two of the three reindeer that were identified on the February 9, 1998, inspection as being very thin had died, and the surviving reindeer was very thin and in need of immediate veterinary care (CX 27 at 3, CX 28 at 1, CX 32; Tr. 154-56, 159). Finally, Dr. Harlan observed a camel that was extremely thin and in need of immediate veterinary care (CX 27 at 3, CX 28 at 1, CX 31; Tr. 154-56, 158-59). Dr. Harlan was so concerned for the animals' health that she served a Notice of Intent to Confiscate Animals on Respondents (CX 27 at 5-6, CX 28; Tr. 155-57).

Mr. Stephens testified that he did not think anything was wrong with the camel. He thought the animal was in rut. (Tr. 417.) However, he failed to confirm his belief with a veterinarian because he thought that if he called the veterinarian every time something was wrong, the veterinarian would think he was "half nuts" (Tr. 417). Mr. Stephens testified that he sought veterinary care for the reindeer (Tr. 365). However, Respondents' veterinarian did not appear as a witness at the hearing, and Respondents did not produce any records indicating that the reindeer had received care.

Dr. Lewandowski testified that the photographs taken of the camel and reindeer showed the camel to be in a very debilitated condition and the reindeer to be in a critical state requiring intensive care (CX 31, CX 50; Tr. 285-87).

4. The APHIS Inspection on March 25, 1998

On March 25, 1998, Dr. Harlan inspected Respondents' facility and found violations of the Animal Welfare Act and the Regulations and Standards (CX 42- CX 47, CX 51; Tr. 167-74).

a. Failure to remove and dispose of animal waste

Dr. Harlan testified that the large pile of manure located by the upper barn that was cited during the February 9, 1998, and March 23, 1998, inspections had not been removed (CX 42 at 1, CX 45; Tr. 168-69).

Mr. Stephens testified that Respondents have had a manure pile for 8 or 10 years and never had a problem with it (Tr. 371- 72). He also testified that waste disposal depends on what day it is and how the weather is (Tr. 361).

Dr. Lewandowski testified that a manure pile of the size maintained by Respondents would have an impact on Respondents' entire facility (Tr. 312). He also testified that rats and mice gravitate to manure piles because they are warm and that there were plenty of rats and mice and evidence of rats and mice in the areas in which Respondents housed the male Bactrian camel and reindeer (Tr. 313).

*20 b. Failure to provide adequate pest control

Dr. Harlan testified that she observed fresh rodent holes in the lower barn feed storage room (CX 42 at 1, CX 47; Tr. 169, 174).

Mr. Stephens acknowledged that Respondents' pest control program was "[m]aybe not really effective" (Tr. 360).

c. Failure to provide wholesome and uncontaminated food

Dr. Harlan testified that she observed baler twine mixed with the hay in the reindeer's pen (CX 42 at 1, CX 46; Tr. 170, 173-74). She testified that many animals do eat string, and if the animal had ingested the string, it could cause serious intestinal damage and lead to the animal's death (Tr. 170). Mr. Stephens agreed with Dr. Harlan that the string was in the animal feed and that it should not have been in the animal feed (Tr. 397).

d. Failure to provide adequate veterinary care

Dr. Harlan testified that she observed several goats and a llama that were cited as in need of hoof trimming during the March 23, 1998, inspection that were still in need of hoof trimming (CX 42 at 2; Tr. 170). She also observed some sheep that were in need of hoof trimming (Tr. 170). In addition, Dr. Harlan was very concerned about the condition of the one surviving reindeer and the male camel (Tr. 171). Although the animals had been examined, Mr. Stephens was not providing veterinary care to the animals that were in critical condition (CX 42 at 2, CX 44; Tr. 171-73).

Mr. Stephens testified that sometimes he makes mistakes and sometimes he does not get around to trimming Respondents' animals' hooves (Tr. 369-70). He admitted that not trimming Respondents' animals' hooves could cause injury to their health (Tr. 370). He testified further that he thought the camel was eating, but did not think anything was wrong with the camel because he thought the camel was in rut (Tr. 374, 417). Mr. Stephens did not take any steps to confirm that the camel was in rut (Tr. 417).

Dr. Lewandowski testified that he conducted an examination of the camel and reindeer during the March 25, 1998, inspection (CX 43; Tr. 281). He testified that both animals were in extremely poor condition (Tr. 282). The humps on the camel were so severely depleted of fat that both of the camel's humps were flattened laterally against the side of his body (Tr. 283). Dr. Lewandowski stated that the camel "was in very, very poor condition" (CX 31; Tr. 283, 285- 86), and the reindeer was in worse condition than the camel (CX 50; Tr. 283-84, 286-87).

e. Failure to allow APHIS to conduct a complete inspection

Dr. Harlan testified that, during the March 25, 1998, inspection, Mr. Stephens returned home and informed her that she could not complete the inspection (CX 42 at 2, CX 51; Tr. 171- 72).

Mr. Stephens testified that he agrees with the regulation that authorizes APHIS officials to inspect an exhibitor's facility, but he believed that Dr. Harlan was harassing him by coming back to view the condition of Respondents' animals (Tr. 421). I disagree. Dr. Harlan specifically denied having any animosity towards Mr. Stephens or engaging in any acts of harassment against him (Tr. 247), and I am unable to conclude that Dr. Harlan was harassing Respondents.

*21 5. The APHIS Inspection on March 30, 1998

On March 30, 1998, Dr. Harlan inspected Respondents' facility and found violations of the Animal Welfare Act and the Regulations (CX 48-CX 50, CX 52, CX 53; Tr. 174-88).

a. Failure to allow APHIS to conduct a complete inspection

Dr. Harlan testified that Mr. Stephens would not permit her to conduct a complete inspection of Respondents' facility (CX 48, CX 52; Tr. 176-77). Mr. Stephens limited Dr. Harlan's inspection to examination of the camel and reindeer (CX 48, CX 52; Tr. 175-77).

Mr. Stephens testified that he agrees with the regulation that authorizes APHIS officials to inspect an exhibitor's facility, but he believed that Dr. Harlan was harassing him by coming back to view the condition of Respondents' animals (Tr. 421). Dr. Harlan specifically denied having any animosity towards Mr. Stephens or engaging in any acts of harassment against him (Tr. 247), and I am unable to conclude that Dr. Harlan was harassing Respondents.

b. Failure to provide adequate veterinary care

Dr. Harlan testified that the camel remained very thin to the point of emaciation (CX 48 at 1, CX 49; Tr. 175, 178-79). The reindeer was very thin with rapid respirations that were very shallow (CX 48 at 1, CX 50; Tr. 176, 179).

III. Sanctions

The record establishes that Respondents were given notice of the deficiencies at their facility and ample opportunity to correct them (CX 1, CX 13, CX 27-CX 30, CX 42, CX 48, CX 51, CX 52). APHIS employees conducted or attempted to conduct five inspections of Respondents' facility during the period December 10, 1997, through March 30, 1998. During each inspection, APHIS employees pointed out deficiencies to Mr. Stephens and made recommendations on corrections (CX 1, CX 13, CX 27-CX 30, CX 42, CX 48, CX 51, CX 52). After each inspection, APHIS employees prepared an inspection report and gave Respondents a copy of the inspection report (Tr. 423). Each inspection report served as a written notice to Respondents that the APHIS employees found that certain items were not in compliance with the Animal Welfare Act and the Regulations and Standards (Tr. 88-89). APHIS employees discussed the Animal Welfare Act with Mr. Stephens and spent time educating him as to the requirements of the Animal Welfare Act and the Regulations and Standards (Tr. 85).

I find that the APHIS employees who testified regarding their inspections of Respondents' facility were credible and did not exaggerate and their testimonies were often supported by photographs.

An act is "willful" under the Administrative Procedure Act (5 U.S.C. § 558(c)) if the violator "(1) intentionally does an act which is prohibited,-- irrespective of evil motive or reliance on erroneous advice, or (2) acts with careless disregard of statutory requirements." In re Arab Stock Yard, Inc., 37 Agric. Dec. 293, 306 (1978), aff'd mem., 582 F.2d 39 (5th Cir. 1978). The record establishes that Respondents' violations of the Animal Welfare Act and the Regulations and Standards were willful.

*22 Respondents' chronic failure to comply with the Animal Welfare Act and the Regulations and Standards over a period of almost 4 months presents an obvious and careless disregard of the statutory and regulatory requirements. When an Animal Welfare Act licensee disregards statutory and regulatory requirements over such a period of time, the licensee's violations are clearly willful.

The 34 willful violations committed by Respondents warrant a substantial sanction. All of Respondents' violations are regarded as serious by the administrative officials charged with the responsibility for achieving the congressional purpose of the Animal Welfare Act (Tr. 321). Many of Respondents' violations exposed their animals to the risk of serious illness and death.

Section 19(b) of the Animal Welfare Act, with respect to the assessment of a civil penalty, provides, as follows:

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).

With regard to the size of Respondents' business, the evidence shows that Respondents have a business of significant size (Tr. 53). Mr. Stephens testified that Respondents have between 120 and 150 animals and that Respondents exhibit elephants, camels, reindeer, alpacas, llamas, potbellied pigs, lions, tigers, cougars, and numerous other animals (Tr. 338, 370). In 1997, Mr. Stephens earned $20,000 from his exhibition activities (Tr. 384-86).

The gravity of Respondents' violations is clearly evident. For example, Respondents' failures to provide veterinary care for the animals in need of care are very serious violations (Tr. 321). Respondents chronically failed to comply with the Animal Welfare Act and the Regulations and Standards during the period December 10, 1997, through March 30, 1998 (Tr. 321-22). Moreover, during the March 25, 1998, and March 30, 1998, inspections, Mr. Stephens refused to allow APHIS officials to conduct a complete inspection of Respondents' facility, in violation of 7 U.S.C. § 2146(a) and 9 C.F.R. § 2.126(a). Respondents' refusals to allow APHIS officials to complete inspections of their facility are very serious violations because they thwart the Secretary of Agriculture's ability to carry out the purposes of the Animal Welfare Act.

Respondents' conduct over a period of almost 4 months reveals consistent disregard for, and unwillingness to, abide by the requirements of the Animal Welfare Act and the Regulations and Standards. As Dr. Goldentyer, Eastern Regional Director, Division of Animal Care, APHIS, USDA, testified, "[i]t's also serious because the facility was given opportunities to comply and did not." (Tr. 321.)

An ongoing pattern of violations establishes a "history of previous violations" for the purposes of section 19(b) of the Animal Welfare Act. The record in this proceeding establishes that Respondents committed 34 violations of the Animal Welfare Act and the Regulations and Standards.

*23 The administrative officials responsible for administration of the Animal Welfare Act and day-to-day supervision of the Animal Welfare program recommend that I order that Respondents cease and desist from violating the Animal Welfare Act and the Regulations and Standards, assess Respondents a $32,000 civil penalty, and permanently disqualify Respondents from obtaining an Animal Welfare Act license (Complainant's Brief at 19-22). USDA'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):

[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 recommendations of administrative officials charged with the responsibility for achieving the congressional purpose of the regulatory statute are highly relevant to any sanction to be imposed and are entitled to great weight in view of the experience gained by administrative officials during their day- to-day supervision of the regulated industry. In re S.S. Farms Linn County, Inc., supra, 50 Agric. Dec. at 497. However, the recommendation of administrative officials as to the sanction is not controlling, and in appropriate circumstances, the sanction imposed may be considerably less, or different, than that recommended by administrative officials. [FN3]

The administrative officials base their sanction recommendation on the 39 violations of the Animal Welfare Act and the Regulations and Standards alleged in the Complaint. I reject their recommendation of a $32,000 civil penalty and assess only a $27,800 civil penalty because I find that Complainant failed to prove five of the violations alleged in the Complaint.

The purpose of an administrative sanction is deterrence rather than punishment. This case involves serious violations and chronic noncompliance with the Animal Welfare Act and the Regulations and Standards. APHIS employees made numerous attempts to educate Mr. Stephens to the requirements of the Animal Welfare Act and the Regulations and Standards. Mr. Stephens was recalcitrant and refused to comply with the Animal Welfare Act and the Regulations and Standards over a period of almost 4 months. Congress enacted the Animal Welfare Act and charged the Secretary of Agriculture with enforcing it. USDA has limited resources available for enforcement of the Animal Welfare Act and relies heavily on the deterrent effect disciplinary proceedings and sanctions have on regulated individuals (Tr. 319-20, 322). The sanctions recommended by administrative officials, as modified to reflect my finding that Complainant failed to prove five of the violations alleged in the Complaint, are necessary to dissuade Respondents and others from committing the same or similar violations.

*24 Section 19(b) of the Animal Welfare Act authorizes the assessment of a maximum civil penalty of $2,500 per violation (7 U.S.C. § 2149(b)). Therefore, under the Animal Welfare Act, Respondents could be assessed a maximum of $85,000 for Respondents' 34 violations of the Animal Welfare Act and the Regulations and Standards.

I agree with Complainant that, in addition to the assessment of a civil penalty, Respondents should be ordered to cease and desist from violating the Animal Welfare Act and the Regulations and Standards and should be permanently disqualified from obtaining an Animal Welfare Act license. [FN4]

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Respondents raise four issues in Respondents' Appeal to the Judicial Officer [hereinafter Appeal Petition]. First, Respondents contend that the ALJ's permanent disqualification of Respondents from obtaining an Animal Welfare Act license is unfair and unjust. In support of their contention, Respondents assert that there are no similar cases in which a person was permanently disqualified from obtaining an Animal Welfare Act license, Respondents were cited for violating the veterinary care requirements only with respect to five animals (three reindeer, one camel, and one tiger), APHIS did not confiscate any of Respondents' animals, Respondents attempted to correct all of the violations found by APHIS employees, and none of Respondents' violations rise to willful defiance of USDA. (Appeal Pet. at 1-2.)

I disagree with Respondents' contention that their permanent disqualification from obtaining an Animal Welfare Act license is unfair and unjust. Respondents' assertion that there are no similar cases in which a respondent was permanently disqualified from obtaining an Animal Welfare Act license is incorrect. In the past, USDA has permanently disqualified dealers and exhibitors from obtaining Animal Welfare Act licenses or permanently revoked dealers' and exhibitors' Animal Welfare Act licenses for the kind of violations that I find Respondents committed. [FN5]

Further, Respondents' assertion that they were cited for failure to provide veterinary care for only five animals is incorrect. Respondents failed to provide veterinary care to the following animals in need of veterinary care, in violation of section 2.40 of the Regulations (9 C.F.R. § 2.40): (1) on December 10, 1997, a yak, a tiger, and a reindeer (CX 1 at 3); (2) on February 9, 1998, a bison, a tiger, and three reindeer (CX 13 at 4); (3) on March 23, 1998, several goats, a llama, a tiger, a reindeer, and a camel (CX 27 at 3); (4) on March 25, 1998, several goats, a llama, several sheep, a camel, and a reindeer (CX 42 at 2); and (5) on March 30, 1998, a camel and a reindeer (CX 48 at 1).

I agree with Respondents' assertion that APHIS did not confiscate their animals. However, the record reveals that during the March 23, 1998, inspection of Respondents' facility, two APHIS veterinary medical officers, Drs. Harlan and Hammel, examined a reindeer and a camel which they found met the requirements in 7 U.S.C. § 2146(a) and 9 C.F.R. § 2.129(a) for confiscation (CX 28 at 1, CX 29 at 1) and that Drs. Harlan and Hammel issued a Notice of Intent to Confiscate Animals (CX 27 at 5-6). Moreover, APHIS' failure to confiscate Respondents' animals is not a basis for finding that permanent disqualification of Respondents from obtaining an Animal Welfare Act license is unfair and unjust.

*25 The record does not establish that Respondents "attempted" to correct all of the violations found by APHIS employees. Even if I found that Respondents had successfully corrected all of the violations immediately after they were identified by APHIS employees, a correction does not eliminate the fact that the violation occurred. [FN6]

Finally, while I am uncertain of the meaning of Respondents' assertion that none of their violations "rise to the level of willful defiance of USDA," I find that Respondents' 34 violations of the Animal Welfare Act and the Regulations and Standards were willful. [FN7]

A sanction by an administrative agency will be overturned only if it is unwarranted in law or without justification in fact. [FN8] While there is no provision in the Animal Welfare Act that explicitly states that the Secretary of Agriculture is authorized to disqualify a person from becoming licensed, section 21 of the Animal Welfare Act (7 U.S.C. § 2151) authorizes the issuance of an order disqualifying an unlicensed violator from becoming licensed because of violations of the Animal Welfare Act, the Regulations, or the Standards, [FN9] and there are numerous instances in which the Secretary of Agriculture has exercised the authority to disqualify unlicensed violators from becoming licensed under the Animal Welfare Act. [FN10] Therefore, the ALJ's permanent disqualification of Respondents from obtaining an Animal Welfare Act license was warranted in law.

Moreover, Respondents' permanent disqualification from obtaining an Animal Welfare Act license is not unfair and unjust. This case involves extremely serious, willful violations of the Animal Welfare Act and the Regulations and Standards by Respondents who have not displayed good faith. Respondents have a history of previous violations of the Animal Welfare Act and the Regulations and Standards. [FN11]

The permanent disqualification of Respondents from obtaining an Animal Welfare Act license was recommended by the administrative officials charged with the responsibility for achieving the congressional purpose of the Animal Welfare Act (Complainant's Brief at 21) and is in accord with USDA's sanction policy, which is set forth in In re S.S. Farms Linn County, Inc., supra, 50 Agric. Dec. at 497.

Second, Respondents contend that the ALJ erroneously allowed Dr. Lewandowski to testify "beyond the bounds of his personal experience and beyond the bounds of the testimony referred to on the witness list" (Appeal Pet. at 3). Respondents allege that Dr. Lewandowski's testimony that was beyond the bounds of his personal observations harmed Respondents and contend that the civil penalty assessed against Respondents and the permanent disqualification of Respondents from obtaining an Animal Welfare Act license, should be modified to "reinstatement of license" (Appeal Pet. at 3).

Specifically, Respondents contend that the ALJ's denial of two objections (Tr. 288, 306) are error. First, Respondents objected to a question posed by Complainant's counsel to Dr. Lewandowski regarding CX 2 (pictures of deer carcasses in Respondents' large cat area taken during the December 10, 1997, inspection of Respondents' facility), as follows:

*26 [BY MR. MARTIN:]

Q. Doctor, you have testified here today that you are familiar with the proper methods of caring for and feeding exhibition animals?

[BY DR. LEWANDOWSKI:]

A. Yes.

Q. I was wondering if you could take a look at some photographs, and I would like to ask you for your opinion --

A. Sure.

Q. -- concerning those photographs. Would you please take a look at Complainant's Exhibit CX-2, please?

A. Two?

Q. Two. In particular, I would like you to look at photographs --

MR. HARTLEY: Excuse me. I would like to object to this testimony as it goes outside the scope of his affidavit if this is regarding feeding of tigers and lions. He did not write any affidavit regarding the feeding of tigers and lions and cats.

MR. MARTIN: Your Honor, the witness has testified that he has extensive experience in the care, handling, feeding, nutrition of exhibition animals, and I think as long as we have this witness here who obviously has a lot of expertise that he could share with the Court, I think we should get his opinion concerning some of the methods that were employed at Mr. Stephens' facility because Mr. Hartley has raised the issue that USDA is taking extreme interpretations of some of these regulations.

JUDGE BERNSTEIN: I do not think this witness is limited to any affidavit that he may have submitted in the scope of his testimony.

MR. HARTLEY: Okay. Then I would like to voir dire him regarding his experience with cats just real quick.

JUDGE BERNSTEIN: All right.

He is going to ask you some questions about your experience.

THE WITNESS: Okay.

VOIR DIRE EXAMINATION

 

BY MR. HARTLEY:

Q. What education do you have regarding exotic animals, including lions and tigers?

A. As I mentioned before, my training was in zoo and wildlife medicine, exotic animal medicine, at the University of Pennsylvania and the Philadelphia Zoo.

The Philadelphia Zoo at that time maintained approximately 30 cats ranging in size from the small exotic cats, such as ocelot, all the way through jaguar, leopard, lions and tigers.

The zoo in Detroit, we maintained --

Q. I am sorry. So you were involved in maintenance and treatment of those animals?

A. Oh, yes.

MR. HARTLEY: That is all the questions I have.

JUDGE BERNSTEIN: Are you satisfied --

MR. HARTLEY: Yes.

JUDGE BERNSTEIN: -- that he has expertise in this field?

MR. HARTLEY: Yes, I am. Yes.

JUDGE BERNSTEIN: Okay. Continue, Mr. Martin.

DIRECT EXAMINATION RESUMED

 

Tr. 287-89.

Section 1.141(h)(2)(i) of the Rules of Practice (7 C.F.R. § 1.141(h)(2)(i)) provides that if a party objects to the admission of any evidence and the administrative law judge overrules the objection, an automatic exception will follow. However, based on Respondents' counsel's voir dire examination of Dr. Lewandowski and the colloquy between the ALJ and Respondents' counsel after the voir dire examination (Tr. 289), I find that Respondents withdrew the objection at Tr. 288.

*27 Nonetheless, Respondents again objected to Dr. Lewandowski's testimony regarding some of the photographs taken of Respondents' facility during the December 10, 1997, and March 23, 1998, inspections of Respondents' facility and Dr. Lewandowski's testimony regarding proper animal facility operation, [FN12] as follows:

MR. HARTLEY: Again, I would request that his testimony regarding all the photographs and what he feels a farm should be like to be stricken, being that we were not given prior notice of his testimony regarding those issues.

JUDGE BERNSTEIN: I have considered your application, and it is denied.

MR. HARTLEY: Okay.

JUDGE BERNSTEIN: We are here to make a complete record, and to that end I have accepted his testimony on the issues.

MR. HARTLEY: Okay.

Tr. 306.

The record reveals that Dr. Lewandowski did not participate in the December 10, 1997, and March 23, 1998, inspections of Respondents' facility. Further, Dr. Lewandowski's participation in the March 25, 1998, inspection was limited to an examination of the condition of Respondents' adult male Bactrian camel and adult female reindeer and the feed that Respondents provided to the male Bactrian camel (CX 43; Tr. 281-87, 307-08). However, the record reveals that Dr. Lewandowski is an expert in the field of care, handling, feeding, and nutritional requirements of exhibition animals, such as Respondents' animals (Tr. 279-81). Respondents offered to stipulate that Dr. Lewandowski is a veterinary care expert (Tr. 280) and agreed with the ALJ that Dr. Lewandowski is an expert "regarding exotic animals, including lions and tigers" (Tr. 289) and an expert with respect to the "other matters" at issue in the proceeding (Tr. 294-95).

The Administrative Procedure Act provides, with respect to the admission of evidence, that:

§ 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision

. . . .

(d) . . . Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.

5 U.S.C. § 556(d).

Section 1.141(h)(1)(iv) of the Rules of Practice provides, as follows:

§ 1.141 Procedure for hearing.

. . . .

(h) Evidence--(1) In general. . . .

. . . .

(iv) Evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely, shall be excluded insofar as practicable.

7 C.F.R. § 1.141(h)(1)(iv).

Dr. Lewandowski's expert testimony regarding the conditions depicted in photographs taken at Respondents' facility during the December 10, 1997, and March 23, 1998, inspections of Respondents' facility is material, relevant, not unduly repetitious, and the type of evidence upon which responsible persons are accustomed to rely. Therefore, I do not find that the ALJ erred by allowing Dr. Lewandowski to testify about conditions at Respondents' facility on December 10, 1997, and March 23, 1998, based upon Dr. Lewandowski's observation of pictures of conditions at Respondents' facility on December 10, 1997, and March 23, 1998.

*28 Third, Respondents contend that the ALJ's findings of fact and conclusions of law are error. Specifically, Respondents contend that the ALJ erroneously found that Respondents failed to provide animals with wholesome and uncontaminated food and that the ALJ erroneously found that Respondents failed to provide veterinary care to animals in need of care on February 9, 1998. (Appeal Pet. at 4.)

The ALJ concluded that Respondents failed to provide animals with wholesome and uncontaminated food on December 10, 1997, February 9, 1998, March 23, 1998, and March 25, 1998, in violation of section 3.129(a) of the Standards (9 C.F.R. § 3.129(a)) (Initial Decision and Order at 3-6, 8-11; Findings of Fact Nos. 7E, 9E, 12E, 15E; Conclusions of Law Nos. 5E, 7E, 10E, 13E). Respondents contend that the ALJ based his conclusions that Respondents violated 9 C.F.R. § 3.129(a) on findings that Respondents fed road kill that was not fit for consumption to their animals. Respondents assert that the evidence establishes that Respondents obtained road kill to feed to their animals, but did not feed their animals any road kill that was not fit for consumption.

Respondents are correct that there is some evidence that Respondents examined the road kill that they obtained and disposed of at least some of the road kill that was decomposing and not fit for consumption by their animals (Tr. 339-40). However, the record establishes that on February 9, 1998, Respondents fed their animals carcasses that were decomposing and not wholesome (CX 20 at 3-4; Tr. 121, 136).

In any event, the ALJ did not base his conclusions that Respondents violated 9 C.F.R. § 3.129(a) on December 10, 1997, March 23, 1998, and March 25, 1998, on the state of decomposition of carcasses which Respondents fed to their animals (Initial Decision and Order at 15-16, 23, 25), and the ALJ's conclusion that Respondents violated 9 C.F.R. § 3.129(a) on February 9, 1998, is based only in part on Dr. Harlan's observation that "several carcasses being fed to the large cats . . . were black and not fresh" (Initial Decision and Order at 19). Therefore, I find that Respondents' assignment of error regarding the ALJ's conclusions that on December 10, 1997, February 9, 1998, March 23, 1998, and March 25, 1998, Respondents violated 9 C.F.R. § 3.129(a), is misplaced. Complainant proved by a preponderance of the evidence that Respondents violated 9 C.F.R. § 3.129(a) on December 10, 1997, February 9, 1998, March 23, 1998, and March 25, 1998. Even if I found that Respondents examined each road kill carcass and did not feed any decomposing carcass to their animals, that finding would not be a basis for concluding that the ALJ's conclusions that Respondents violated 9 C.F.R. § 3.129(a) on December 10, 1997, February 9, 1998, March 23, 1998, and March 25, 1998, were error.

Respondents also contend that the ALJ's conclusion that on February 9, 1998, Respondents failed to provide veterinary care to animals in need of care, in violation of 9 C.F.R. § 2.40, is error. Specifically, Respondents contend that the ALJ ignored the "admission" on CX 13 that the reindeer did receive veterinary care and that the violations either did not occur or were not as severe as stated by the ALJ. (Appeal Pet. at 4.)

*29 While CX 13 does state that Respondents' reindeer had been examined by a veterinarian on December 22, 1997, CX 13 also states that the reindeer, as well as other animals, were in need of veterinary care, as follows:

Category IV: Non-compliant item(s) previously identified that have not been corrected.

. . . .

2.40(b) Veterinary Care - Lower barn - there was a goat with an abscess on the right jaw. This needs examined and treated by the facility veterinarian. Note: this goat is improved[.]

There was a yak in the lower barn with an excessive number of burrs and mats caught in its coat. It needs clipped to remove this debris. This animal is improved but, there is a young bison in the lower barn who now needs a large mat of burrs and knots removed.

Large cat area - Tiger (Timberland) was tender on his front paws. He favors the left one more, but is sensitive on both. Needs examined by the veterinarian.

All three reindeer were thin and in need of hoof trimming. The hind feet were especially long. The veterinarian that cares for the hoof stock did not examine the goat or reindeer until 12/22/97 - correction date was 12/11/97.

The veterinarian for the big cats did not examine the tiger "Timberland" he prescribed treatment over the phone. Mr. Stephens indicated that he treated the animal for about ten days after our last inspection on 12/10/97. Mr Stephens has not gotten back to his vet to inform him that the cat continues to limp.

CX 13 at 4.

Further, Dr. Harlan testified regarding the veterinary care violations which she observed on February 9, 1998, as follows:

[BY MR. MARTIN:]

Q. Any other veterinary care deficiencies?

[BY DR. HARLAN:]

A. Yes, there were. We noted that -- we examined not only the animals that were -- we examined all the animals present, obviously, for veterinary care, but we made a special note of the animals that had been previously cited, to see how they had been treated and what was going on with them.

As everything was not corrected on this, we listed the items that were improved as part of the non-compliance for category, a repeat non-compliance, so that we could identify the ones that still needed to be taken care of and that were still in non-compliance. So, the items that were, that Water Wheel Exotics was given credit for was the goat with the abscess on the right jaw. There was evidence that this animal was improved and was looking better. The yak in the lower barn had been clipped. There was another animal, though, in exactly the same condition with excessive build up of burrs in his coat, which was a young bison who also now needed to be clipped.

The tiger, Timberland, was tender on his front paws and continued to be tender at this inspection and was favoring the left one, again, more.

We did talk to Mr. Stephens about this and he did indicate that it had been examined, or had not been examined, but Dr. Sheperd had prescribed treatment over the phone on 12/10, but he had not reported back to the veterinarian that the animal was still limping as of that time on February 9.

*30 The three reindeer that we saw that day were all still very thin and still in need of hoof trimming. So, the veterinary care provisions remained unchanged.

Q. Doctor, how would you characterize those deficiencies?

A. Very serious for the animal's sake. The tiger, Timberland, for at least two months at this point, was still limping and very sore on his front feet, and had yet to be examined by a veterinarian. The three reindeer, there was no evidence of any work up or exam by the veterinarian to determine why they were thin and what was going wrong with them. They still had not had their feet trimmed, which would make them more comfortable and able to get around. Obviously, one animal had been clipped, but there was another animal in the exact same condition that now needed to be clipped.

It was an observed pattern of difficulties of the animals, with no real improvement occurring for the benefit of the animal.

The only real improvement was the abscess on the goat.

Q. And, did you express your concerns to Mr. Stephens?

A. Yes, I did.

Q. What did you tell him?

A. I told him again that these animals needed to be promptly examined by a veterinarian, appropriate work up for the reindeer that were thin to find out why and proper treatment needed to be provided to Timberland, the tiger with the sore feet. He needed to be examined, needed to have a determination of what was causing the tenderness and limping on those front feet.

Tr. 118-20.

Further still, pictures taken during the February 9, 1998, inspection of Respondents' facility depict the need for care of the bison's coat (CX 26 at 1- 3), a thin reindeer (CX 26 at 4), and reindeer in need of hoof trimming (CX 26 at 4-6).

Mr. Stephens testified that the tiger, "Timberland," was being treated by a veterinarian, Dr. Sheperd (Tr. 369), but Dr. Sheperd did not testify, and Respondents did not produce any records indicating that the tiger had been treated. Moreover, Mr. Stephens agreed with Dr. Harlan's finding that the hoofs of the three reindeer needed trimming (Tr. 369).

I find that Complainant proved by a preponderance of the evidence that on February 9, 1998, Respondents failed to provide veterinary care to animals in need of care, in violation of 9 C.F.R. § 2.40, and the ALJ's conclusion that Respondents violated 9 C.F.R. § 2.40 on February 9, 1998, is not error.

Moreover, except with respect to the ALJ's conclusions that Respondents violated 9 C.F.R. §§ 3.125(a), (c), .127(c), .128, and .131(a) on March 25, 1998, I disagree with Respondents contention that the ALJ's findings of fact and conclusions of law are error. The ALJ bases his conclusion that Respondents violated 9 C.F.R. §§ 3.125(a), (c), .127(c), .128, and .131(a) on March 25, 1998, on Respondents' violation of each of these provisions of the Standards on the immediately preceding inspection, March 23, 1998, and Respondents' refusal to allow APHIS officials to conduct a complete inspection on March 25, 1998, to determine if these violations had been corrected (Initial Decision and Order at 27-28).

*31 Complainant, as 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 in administrative proceedings conducted under the Animal Welfare Act is preponderance of the evidence. [FN13] Complainant introduced no evidence which proves that Respondents' violations of 9 C.F.R. §§ 3.125(a), (c), .127(c), .128, and .131(a) on March 23, 1998, continued on March 25, 1998. Respondents' refusal to allow APHIS employees to complete the inspection of Respondents' facility on March 25, 1998, and the APHIS employees' inability on March 25, 1998, to determine if Respondents' violations of 9 C.F.R. §§ 3.125(a), (c), .127(c), .128, and .131(a) on March 23, 1998, had been corrected, is not proof that on March 25, 1998, Respondents violated 9 C.F.R. §§ 3.125(a), (c), .127(c), .128, and .131(a).

Fourth, Respondents contend that the civil penalty assessed by the ALJ against Respondents was excessive given the fact that Respondents' violations were not severe and the financial state of Respondents. Respondents request that "the Judicial Officer . . . remove the fine." (Appeal Pet. at 4.)

While I have reduced the civil penalty assessed by the ALJ against Respondents, the reduction in the civil penalty is only based on my disagreement with the ALJ's conclusion that Respondents committed at least 39 violations of the Animal Welfare Act and the Regulations and Standards. However, I do not find that the ALJ's assessment of a $32,000 civil penalty against Respondents, based on the ALJ's finding of at least 39 violations, was "excessive," and I find no basis upon which to "remove" the civil penalty.

A sanction by an administrative agency will be overturned only if it is unwarranted in law or without justification in fact. [FN14] The Secretary of Agriculture has authority to assess a civil penalty of not more than $2,500 for each violation of the Animal Welfare Act or the Regulations and Standards (7 U.S.C. § 2149(b)); therefore, the ALJ's assessment of a $32,000 civil penalty against Respondents, based on the ALJ's finding of at least 39 violations of the Animal Welfare Act and the Regulations and Standards, was warranted in law.

Moreover, I disagree with Respondents' contention that the civil penalty assessed by the ALJ is excessive. This case involves extremely serious, willful violations of the Animal Welfare Act and the Regulations and Standards by Respondents who have not displayed good faith. Moreover, Respondents have a history of previous violations of the Animal Welfare Act and the Regulations and Standards. [FN15]

The civil penalty assessed by the ALJ was recommended by the administrative officials charged with the responsibility for achieving the congressional purpose of the Animal Welfare Act (Complainant Brief at 19-22) and is in accord with USDA's sanction policy, which is set forth in In re S.S. Farms Linn County, Inc., supra, 50 Agric. Dec. at 497.

*32 Moreover, the civil penalty assessed by the ALJ against Respondents is well within the range of civil penalties assessed in these kinds of cases. USDA consistently imposes significant civil penalties for violations of the Animal Welfare Act and the Regulations and Standards. [FN16] I have reduced the $32,000 civil penalty assessed by the ALJ to $27,800 only because I find that Respondents committed 34 violations of the Animal Welfare Act and the Regulations and Standards, rather than at least 39 violations found by the ALJ.

Finally, a respondent's financial state is not a factor that is required by section 19(b) of the Animal Welfare Act (7 U.S.C. § 2149(b)) to be considered in determining the amount of the civil penalty to assess against the respondent for violations of the Animal Welfare Act or the Regulations and Standards. [FN17] Therefore, Respondents' financial state is not relevant to the amount of the civil penalty assessed by the ALJ.

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

Order

 

1. Respondents, their agents and employees, successors and assigns, directly or indirectly 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 a written program of adequate veterinary care under the supervision of a veterinarian and failing to provide adequate veterinary care to animals in need of care;

(b) Failing to provide a suitable method for the removal and disposal of animal and food wastes from the facility;

(c) Failing to construct and maintain housing facilities for animals so that they are structurally sound and in good repair in order to protect the animals from injury and contain the animals securely;

(d) Failing to store food so as to adequately protect the food against deterioration, molding, or contamination by vermin;

(e) Failing to clean primary enclosures for animals, as required;

(f) Failing to establish and maintain an effective program for the control of pests;

(g) Failing to construct and maintain housing facilities for animals so that sufficient lighting is provided;

(h) Failing to provide a method for the rapid elimination of excess water from housing facilities for animals;

(i) Failing to provide sufficient space for animals in enclosures;

(j) Failing to maintain records of the acquisition and disposition of animals, as required;

(k) Failing to provide animals with wholesome and uncontaminated food;

(l) Failing to adequately ventilate indoor housing facilities for animals; and

(m) Failing to allow APHIS officials to conduct complete inspections of all animals and facilities.

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

2. Respondents are jointly and severally assessed a civil penalty of $27,800, which is hereby suspended: Provided, That Respondents, after notice and opportunity for a hearing, are not found to have violated the Animal Welfare Act or the Regulations and Standards issued under the Animal Welfare Act for the period of disqualification from becoming licensed under the Animal Welfare Act and the Regulations imposed in paragraph 3 of this Order.

*33 3. Respondents are permanently disqualified from obtaining a license under the Animal Welfare Act and the Regulations. The disqualification provision of this Order shall become effective upon service of this Order on Respondents.

4. Notwithstanding paragraph 3 of this Order, in order to facilitate the provision of care to Respondents' animals during the period of disqualification, Respondents may sell any animals which are under their control on the effective date of the disqualification provision of this Order. Respondents shall notify APHIS in writing at least 10 days prior to any sale and shall specify the species and identification number of each animal to be sold, the location of each animal to be sold, the prospective buyer of each animal to be sold, the time that each animal to be sold will be moved, and the method of transportation of each animal to be sold. This information shall be provided to: Dr. Elizabeth Goldentyer, Regional Director, Eastern Region; USDA, APHIS, ANIMAL CARE; 2568 A Riva Road, Suite 302, Annapolis, Maryland 21401- 7400 (Telephone number: (410) 571-8692). This paragraph of the Order does not modify the disqualification of Respondents from becoming licensed under the Animal Welfare Act and the Regulations, as provided in paragraph 3 of this Order, in any other manner and shall not be construed as allowing Respondents to acquire any new animals for regulated activities, the sale and purchase of which is regulated by the Animal Welfare Act and the Regulations.

FN1. 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 Judie Hansen, 57 Agric. Dec. ___, slip op. at 43 (Dec. 14, 1998); In re David M. Zimmerman, 57 Agric. Dec. ___, slip op. at 19 (Nov. 18, 1998); In re Richard Lawson, 57 Agric. Dec. ___, slip op. at 45-46 (Oct. 15, 1998); In re Marilyn Shepherd, 57 Agric. Dec. 242, 272 (1998); In re John D. Davenport, 57 Agric. Dec. 189, 223 n.4 (1998), appeal dismissed, No. 98-60463 (5th Cir. Sept. 25, 1998); In re Peter A. Lang, 57 Agric. Dec. 59, 72 n.3 (1998), appeal docketed, No. 98-70807 (9th Cir. July 10, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1455-56 n.7 (1997), aff'd, No. 98-3100 (3d Cir. Dec. 21, 1998) (unpublished); In re Fred Hodgins, 56 Agric. Dec. 1242, 1246-47 n.*** (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 461 (1997), aff'd, 156 F.3d 1227 (3d Cir. 1998) (Table); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 169 n.4 (1997), aff'd, No. 97-3603 (6th Cir. Jan. 7, 1999); 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).

FN2. "[T]he subsequent correction of a condition not in compliance with the standards has no bearing on the existence of a violation . . . ." See In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1070 (1992), aff'd, 61 F.3d 907, 1995 WL 809637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)).

FN3. In re Judie Hansen, 57 Agric. Dec. ___, slip op. at 91 (Dec. 14, 1998); In re Richard Lawson, 57 Agric. Dec. ___, slip op. at 67-68 (Oct. 15, 1998); In re Marilyn Shepherd, 57 Agric. Dec. 242, 283 (1998); In re Scamcorp, Inc., 57 Agric. Dec. 527, 574 (1998); In re Allred's Produce, 56 Agric. Dec. 1884, 1918-19 (1997), appeal docketed, No. 98-60187 (5th Cir. Apr. 3, 1998); In re Kanowitz Fruit & Produce, Co., 56 Agric. Dec. 942, 953 (1997) (Order Denying Pet. for Recons.); In re William E. Hatcher, 41 Agric. Dec. 662, 669 (1982); In re Sol Salins, Inc., 37 Agric. Dec. 1699, 1735 (1978); In re Braxton Worsley, 33 Agric. Dec. 1547, 1568 (1974).

FN4. See In re David M. Zimmerman, 57 Agric. Dec. ___, slip op. at 40-45 (Nov. 18, 1998).

FN5. See, e.g., In re David M. Zimmerman, 57 Agric. Dec. ___ (Nov. 18, 1998) (assessing a $20,000 civil penalty against the respondent and permanently disqualifying the respondent from obtaining an Animal Welfare Act license for 33 violations of the Animal Welfare Act and the Regulations); In re John D. Davenport, 57 Agric. Dec. 189 (1998) (assessing a $200,000 civil penalty against the respondent and revoking the respondent's Animal Welfare Act license for 103 violations of the Animal Welfare Act and the Regulations and Standards), appeal dismissed, No. 98-60463 (5th Cir. Sept. 25, 1998); In re James J. Everhart, 56 Agric. Dec. 1400 (1997) (assessing a $3,000 civil penalty against the respondent and permanently disqualifying the respondent from obtaining an Animal Welfare Act license for three violations of the Animal Welfare Act and the Regulations); In re Volpe Vito, Inc., 56 Agric. Dec. 166 (1997) (assessing a $26,000 civil penalty against the respondent and revoking the respondent's Animal Welfare Act license for 51 violations of the Animal Welfare Act and the Regulations and Standards), aff'd, No. 97-3603 (6th Cir. Jan. 7, 1999) (not to be cited as precedent under 6th Circuit Rule 206).

FN6. In re Marilyn Shepherd, 57 Agric. Dec. 242, 274 (1998); In re John D. Davenport, 57 Agric. Dec. 189, 219 (1998), appeal dismissed, No. 98- 60463 (5th Cir. Sept. 25, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1456 n.8 (1997), aff'd, No. 98-3100 (3d Cir. 1998) (unpublished); In re Fred Hodgins, 56 Agric. Dec. 1242, 1316 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 466 (1997), aff'd, 156 F.3d 1227 (3d Cir. 1998) (Table); In re Volpe Vito, Inc., 56 Agric. Dec. 269, 272-73 (1997) (Order Denying Pet. for Recons.); In re John Walker, 56 Agric. Dec. 350, 367 (1997); In re Mary Meyers, 56 Agric. Dec. 322, 348 (1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 254 (1997), aff'd, No. 97-3603 (6th Cir. Jan. 7, 1999) (not to be cited as precedent under 6th Circuit Rule 206); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 142 (1996); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1070 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)).

FN7. An action is willful under the Administrative Procedure Act (5 U.S.C. § 558(c)) if a prohibited act is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. Toney v. Glickman, 101 F.3d 1236, 1241 (8th Cir. 1996); Cox v. United States Dep't of Agric., 925 F.2d 1102, 1105 (8th Cir.), cert. denied, 502 U.S. 860 (1991); Finer Foods Sales Co. v. Block, 708 F.2d 774, 777-78 (D.C. Cir. 1983); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 997 (1981); George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.), cert. denied, 419 U.S. 830 (1974); Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); Eastern Produce Co. v. Benson, 278 F.2d 606, 609 (3d Cir. 1960); In re Judie Hansen, 57 Agric. Dec. ___, slip op. at 95 (Dec. 14, 1998); In re David M. Zimmerman, 57 Agric. Dec. ___, slip op. at 32 (Nov. 18, 1998); In re Richard Lawson, 57 Agric. Dec. ___, slip op. at 71-72 (Oct. 15, 1998); In re Marilyn Shepherd, 57 Agric. Dec. 242, 286 (1998); In re John D. Davenport, 57 Agric. Dec. 189, 223 (1998), appeal dismissed, No. 98-60463 (5th Cir. Sept. 25, 1998); In re Peter A. Lang, 57 Agric. Dec. 59, 81 (1998), appeal docketed, No. 98- 70807 (9th Cir. July 10, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1454 n.4 (1997), aff'd, No. 98-3100 (3d Cir. Dec. 21, 1998) (unpublished); In re Fred Hodgins, 56 Agric. Dec. 1242, 1352 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 476 (1997), aff'd, 156 F.3d 1227 (3d Cir. 1998) (Table); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 255-56 (1997), aff'd, No. 97-3603 (6th Cir. Jan. 7, 1999); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 138 (1996); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1284 (1988); In re David Sabo, 47 Agric. Dec. 549, 554 (1988). See also Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187 n.5 (1973) ( "'Wilfully' could refer to either intentional conduct or conduct that was merely careless or negligent."); United States v. Illinois Central R.R., 303 U.S. 239, 242-43 (1938) ("In statutes denouncing offenses involving turpitude, 'willfully' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, shows that it often denotes that which is "'intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize 'conduct marked by careless disregard whether or not one has the right so to act."')

The United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Tenth Circuit define the word "willfulness," as that word is used in 5 U.S.C. § 558(c), as an intentional misdeed or such gross neglect of a known duty as to be the equivalent of an intentional misdeed. Capital Produce Co. v. United States, 930 F.2d 1077, 1079 (4th Cir. 1991); Hutto Stockyard, Inc. v. United States Dep't of Agric., 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, Respondents' violations would still be found willful.

FN8. Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187-89 (1973); Havana Potatoes of New York Corp. v. United States, 136 F.3d 89, 92-93 (2d Cir. 1997); County Produce, Inc. v. United States Dep't of Agric., 103 F.3d 263, 265 (2d Cir. 1997); Potato Sales Co. v. Department of Agric., 92 F.3d 800, 804 (9th Cir. 1996); Valkering, U.S.A., Inc. v. United States Dep't of Agric., 48 F.3d 305, 309 (8th Cir. 1995); Farley & Calfee, Inc. v. United States Dep't of Agric., 941 F.2d 964, 966 (9th Cir. 1991); Cox v. United States Dep't of Agric., 925 F.2d 1102, 1107 (8th Cir.), cert. denied, 502 U.S. 860 (1991); Cobb v. Yeutter, 889 F.2d 724, 730 (6th Cir. 1989); Spencer Livestock Comm'n Co. v. Department of Agric., 841 F.2d 1451, 1456- 57 (9th Cir. 1988); Harry Klein Produce Corp. v. United States Dep't of Agric., 831 F.2d 403, 406 (2d Cir. 1987); Blackfoot Livestock Comm'n Co. v. Department of Agric., 810 F.2d 916, 922 (9th Cir. 1987); Stamper v. Secretary of Agric., 722 F.2d 1483, 1489 (9th Cir. 1984); Magic Valley Potato Shippers, Inc. v. Secretary of Agric., 702 F.2d 840, 842 (9th Cir. 1983); J. Acevedo and Sons v. United States, 524 F.2d 977, 979 (5th Cir. 1975) (per curiam); Miller v. Butz, 498 F.2d 1088, 1089 (5th Cir. 1974) (per curiam); G.H. Miller & Co. v. United States, 260 F.2d 286, 296-97 (7th Cir. 1958), cert. denied, 359 U.S. 907 (1959); United States v. Hulings, 484 F. Supp. 562, 566 (D. Kan. 1980); In re Nkiambi Jean Lema, 58 Agric. Dec. ___, slip op. at 9 (Mar. 15, 1999); In re Limeco, Inc., 57 Agric. Dec. ___, slip op. at 29-30 (Aug. 18, 1998), appeal dismissed, No. 98-5571 (11th Cir. Jan. 28, 1999); In re Kanowitz Fruit & Produce Co., 56 Agric. Dec. 942, 951 (1997) (Order Denying Pet. for Recons.); In re Volpe Vito, Inc., 56 Agric. Dec. 269, 273 (1997) (Order Denying Pet. for Recons.); In re Kanowitz Fruit & Produce Co., 56 Agric. Dec. 917, 932 (1997), aff'd, No. 97-4224 (2d Cir. Oct. 29, 1998); In re Saulsbury Enterprises, 56 Agric. Dec. 82, 97 (1997) (Order Denying Pet. for Recons.); In re Volpe Vito, Inc., 56 Agric. Dec 166, 257 (1997), aff'd, No. 97-3603 (6th Cir. Jan. 7, 1999) (not to be cited as precedent under 6th Circuit Rule 206).

FN9. In re David M. Zimmerman, 57 Agric. Dec. ___, slip op. at 40-41 (Nov. 18, 1998); In re William Joseph Vergis, 55 Agric. Dec. 148, 165 n.3 (1996); In re James Petersen, 53 Agric. Dec. 80, 86 (1994); In re Mary Bradshaw, 50 Agric. Dec. 499, 507 (1991).

FN10. See In re David M. Zimmerman, 57 Agric. Dec. ___ (Nov. 18, 1998) (permanently disqualifying the respondent from obtaining an Animal Welfare Act license where the respondent was not licensed at the time the order imposing the sanction was issued); In re Richard Lawson, 57 Agric. Dec. ___ (Oct. 15, 1998) (disqualifying the respondents from obtaining an Animal Welfare Act license for 2 years where the respondents had previously voluntarily terminated their Animal Welfare Act license and were not licensed on the date the disqualification order was issued); In re Marilyn Shepherd, 57 Agric. Dec. 242 (1998) (imposing a 7-day suspension of the respondent's Animal Welfare Act license, but stating that if the respondent is not licensed when the order is issued, the respondent is disqualified from becoming licensed under the Animal Welfare Act for 7 days); In re James J. Everhart, 56 Agric. Dec. 1400 (1997) (permanently disqualifying the respondent from obtaining an Animal Welfare Act license where the respondent was not licensed when the violations occurred or on the date the disqualification order was issued); In re William Joseph Vergis, 55 Agric. Dec. 148 (1996) (disqualifying the respondent from obtaining an Animal Welfare Act license for 1 year where the respondent was not licensed when the violations occurred or on the date the disqualification order was issued); In re James Petersen, 53 Agric. Dec. 80 (1994) (prohibiting the respondents from obtaining an Animal Welfare Act license for 1 year where the respondents were not licensed when the violations occurred or on the date the disqualification order was issued).

FN11. The ongoing pattern of violations of the Animal Welfare Act and the Regulations and Standards during the period of December 10, 1997, through March 30, 1998, establishes a history of previous violations for the purposes of section 19(b) of the Animal Welfare Act (7 U.S.C. § 2149(b)).

FN12. Complainant's counsel elicited testimony from Dr. Lewandowski regarding the following photographs: CX 2 at 1-2, CX 5, CX 6 at 3-4, CX 7, CX 8, CX 9 at 1, CX 12 at 2-3, CX 37, and CX 39. Dr. Lewandowski testified as to whether the photographs depicted the proper operation of an animal facility and the proper care of animals and the methods by which to improve animal facility operation and animal care. (Tr. 289-304.)

FN13. See note 1.

FN14. See note 8.

FN15. See note 11.

FN16. See, e.g., In re Anna Mae Noell, 58 Agric. Dec. ___ (Jan. 6, 1999) (imposing a $25,000 civil penalty and a revocation of license for 43 violations of the Animal Welfare Act and the Regulations and Standards); In re Judie Hansen, 57 Agric. Dec. ___ (Dec. 14, 1998) (imposing a $4,300 civil penalty and a 30-day license suspension for 20 violations of the Animal Welfare Act and the Regulations and Standards); In re David M. Zimmerman, 57 Agric. Dec. ___ (Nov. 18, 1998) (imposing a $20,000 civil penalty and permanent disqualification from obtaining a license for 33 violations of the Animal Welfare Act and the Regulations); In re Richard Lawson, 57 Agric. Dec. ___ (Oct. 15, 1998) (imposing a $13,500 civil penalty and a 2-year disqualification from obtaining a license for 16 violations of the Animal Welfare Act and the Regulations and Standards); In re Marilyn Shepherd, 57 Agric. Dec. 242 (1998) (imposing a $2,000 civil penalty and a 7-day license suspension for 20 violations of the Animal Welfare Act and the Regulations and Standards); In re John D. Davenport, 57 Agric. Dec. 189 (1998) (imposing a $200,000 civil penalty and a revocation of license for 103 violations of the Animal Welfare Act and the Regulations and Standards), appeal dismissed, No. 98-60463 (5th Cir. Sept. 25, 1998); In re Peter A. Lang, 57 Agric. Dec. 59 (1998) (imposing a $1,500 civil penalty for one violation of the Regulations), appeal docketed, No. 98- 70807 (9th Cir. July 10, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419 (1997) (imposing a $7,500 civil penalty and a 40-day license suspension for 15 violations of the Animal Welfare Act and the Regulations and Standards), aff'd, No. 98-3100 (3d Cir. Dec. 21, 1998) (unpublished); In re James J. Everhart, 56 Agric. Dec. 1400 (1997) (imposing a $3,000 civil penalty and permanent disqualification from obtaining a license for three violations of the Animal Welfare Act and the Regulations); In re Dora Hampton, 56 Agric. Dec. 1634 (1997) (Modified Order) (imposing a $10,000 civil penalty and permanent disqualification from obtaining a license for 13 violations of the Regulations and the Standards); In re Fred Hodgins, 56 Agric. Dec. 1242 (1997) (imposing a $13,500 civil penalty and a 14-day license suspension for 54 violations of the Animal Welfare Act and the Regulations and Standards), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Julian J. Toney, 56 Agric. Dec. 1235 (1997) (Decision and Order on Remand) (imposing a $175,000 civil penalty and license revocation for numerous violations of the Animal Welfare Act and the Regulations and Standards); In re David M. Zimmerman, 56 Agric. Dec. 433 (1997) (imposing a $51,250 civil penalty and a 60-day license suspension for 75 violations of the Animal Welfare Act and the Regulations and Standards), aff'd, 156 F.3d 1227 (3d Cir. 1998) (Table); In re Patrick D. Hoctor, 56 Agric. Dec. 416 (1997) (Order Lifting Stay Order and Decision and Order) (imposing a $1,000 civil penalty and a 15- day license suspension for eight violations of the Animal Welfare Act and the Regulations and Standards); In re John Walker, 56 Agric. Dec. 350 (1997) (imposing a $5,000 civil penalty and a 30-day license suspension for 10 violations of the Animal Welfare Act and the Regulations and Standards); In re Mary Meyers, 56 Agric. Dec. 322 (1997) (imposing a $26,000 civil penalty and a 10-year disqualification from obtaining a license for 32 violations of the Animal Welfare Act and the Regulations and Standards); In re Volpe Vito, Inc., 56 Agric. Dec. 166 (1997) (imposing a $26,000 civil penalty and a revocation of license for 51 violations of the Animal Welfare Act and the Regulations and Standards), aff'd, No. 97-3603 (6th Cir. Jan. 7, 1999) (not to be cited as precedent under 6th Circuit Rule 206); In re William Joseph Vergis, 55 Agric. Dec. 148 (1996) (imposing a $2,500 civil penalty and a 1-year disqualification from obtaining a license for one violation of the Regulations and one violation of the cease and desist provisions of a Consent Decision); In re Big Bear Farm, Inc., 55 Agric. Dec. 107 (1996) (imposing a $6,750 civil penalty and 45-day license suspension for 36 violations of the Animal Welfare Act and the Regulations and Standards); In re Ronald D. DeBruin, 54 Agric. Dec. 876 (1995) (imposing a $5,000 civil penalty and 30-day license suspension for 21 violations of the Animal Welfare Act and the Regulations and Standards); In re Tuffy Truesdell, 53 Agric. Dec. 1101 (1994) (imposing a $2,000 civil penalty and 60-day license suspension for 24 violations of the Animal Welfare Act and the Regulations and Standards); In re Gentle Jungle, Inc., 45 Agric. Dec. 135 (1986) (imposing a $15,300 civil penalty and license revocation for numerous violations of the Regulations and the Standards); In re JoEtta L. Anesi, 44 Agric. Dec. 1840 (1985) (imposing a $1,000 civil penalty and license revocation for 10 violations of the Regulations and a previously issued cease and desist order), appeal dismissed, 786 F.2d 1168 (8th Cir.)(Table), cert. denied, 476 U.S. 1108 (1986).

FN17. The Judicial Officer did give consideration to ability to pay when determining the amount of the civil penalty to assess under the Animal Welfare Act in In re Gus White, III, 49 Agric. Dec. 123, 152 (1990). The Judicial Officer subsequently held that consideration of ability to pay in Gus White, III, was inadvertent error and that ability to pay would not be considered in determining the amount of civil penalties assessed under the Animal Welfare Act in the future. See In re Judie Hansen, 57 Agric. Dec. ___, slip op. at 94 (Dec. 14, 1998) (stating that a respondent's ability to pay a civil penalty is not considered in determining the amount of the civil penalty to be assessed); In re David M. Zimmerman, 57 Agric. Dec. ___, slip op. at 16 n.1 (Nov. 18, 1998) (stating that the Judicial Officer has pointed out that when determining the amount of a civil penalty to be assessed under the Animal Welfare Act, consideration need not be given to a respondent's ability to pay the civil penalty); In re James J. Everhart, 56 Agric. Dec. 1401, 1416 (1997) (stating that a respondent's inability to pay the civil penalty is not a consideration in determining civil penalties assessed under the Animal Welfare Act); In re Mr. & Mrs. Stan Kopunec, 52 Agric. Dec. 1016, 1023 (1993) (stating that ability to pay a civil penalty is not a relevant consideration in Animal Welfare Act cases); In re Micheal McCall, 52 Agric. Dec. 986, 1008 (1993) (stating that ability or inability to pay is not a criterion in Animal Welfare Act cases); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1071 (1992) (stating that the Judicial Officer once gave consideration to the ability of respondents to pay a civil penalty, but that the Judicial Officer has removed the ability to pay as a criterion, since the Animal Welfare Act does not require it), 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 Jerome A. Johnson, 51 Agric. Dec. 209, 216 (1992) (stating that the holding in In re Gus White, III, 49 Agric. Dec. 123 (1990), as to consideration of ability to pay, was an inadvertent error; ability to pay is not a factor specified in the Animal Welfare Act and it will not be considered in determining future civil penalties under the Animal Welfare Act).

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