Decision and Order
This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. s 2131 et seq.), and the regulations and standards issued thereunder (9 C.F.R. s 1.1 et seq.). On June 17, 1987, (now Chief) Administrative Law Judge Victor W. Palmer (ALJ) issued an initial Decision and Order suspending respondents' license for 25 years, assessing a civil penalty of $40,000, and directing respondents to cease and desist from numerous practices involving the care and housing of dogs and cats, from failing to allow inspection of respondents' records, and from failing to keep and maintain adequate records as to the acquisition and disposition of dogs and cats.
On August 24, 1987, respondents appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. ss 556 and 557 (7 C.F.R. s 2.35). [FN1] The case was referred to the Judicial Officer for decision on September 29, 1987.
**2 *841 Oral argument before the Judicial Officer, which is discretionary (7 C.F.R. s 1.145(d)), was requested by respondents, but is denied inasmuch as the issues are not difficult, the case has been thoroughly briefed, and oral argument would seem to serve no useful purpose.
Based upon a careful consideration of the record, the initial Decision and Order is adopted as the final Decision and Order in this case, with several changes too trivial to itemize. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.
ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
Preliminary Statement
This is a disciplinary proceeding under the Animal Welfare Act (7 U.S.C. ss 2131-2156, the Act) instituted by a complaint filed January 17, 1986, by the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture. The complaint alleges that the respondents willfully violated the Act, and the regulations and standards issued under the Act, 9 C.F.R. s 1.1-3.142. An administrative hearing was held before me in Portland, Oregon, on March 24 through 27, 1987. Complainant was represented by John D. Griffith, Esq. Respondents were represented by Roger H. Reid, Esq. and Forrest Reid, Esq. Respondents filed a pre-trial brief and complainant filed its proposed findings and conclusions at the commencement of the hearing. The parties were given until May 8, 1987, to file supplemental briefs which, by request of the parties, was later extended until May 29, 1987.
Upon consideration of the record evidence, the proposed findings, conclusions and briefs, I have concluded that respondents violated the Act, the regulations and the standards, and that an order should be entered requiring respondents to cease and desist from further violations, suspending respondents' license for twenty-five years, and assessing a civil penalty of $40,000.00.
Any proposed finding or conclusion, not incorporated as part of those that follow, has been denied as not in accordance with the credible, material and relevant evidence of record.
Findings of Fact
1. (a) Respondent James W. Hickey is an individual who, at all times material herein, did business as S&S Farms. His principal place of business is located at 34779 Santiam Highway, Lebanon, Oregon 97355.
(b) Respondent Hickey, at all times material herein, was a licensed Class B dealer (No. 92-B-50) under the Act.
2. Mr. Hickey is 59 years old, married, and has resided in Linn County during his entire life except for military service during World War II. He is a high school graduate who has been a rye grass farmer, a cattle rancher, the sole owner of Lebanon Bag Company, Inc., and since 1967 has been raising, buying and selling dogs to west coast research facilities. During 1973, while Linn County was building its own dog pound, Mr. Hickey's facilities on Highway 34 served as the Linn County Dog Shelter.
*842 3. On July 20, 1977, at the time of his original application for a license, respondent Hickey agreed in writing to comply with all applicable regulations and standards. He similarly agreed each year when he applied for a renewal of the license.
**3 4. Respondent S.S. Farms, Inc., also known as S.S. Farms Linn County, Inc., and S&S Farms Linn County, Inc., is an Oregon corporation incorporated on June 17, 1985. Its principal place of business is located at 34779 Santiam Highway, Lebanon, Oregon 97355. Respondent S.S. Farms, Inc., is licensed as a Class B dealer (No. 92-B-50) under the Act.
5. Respondent S.S. Farms, Inc., was organized by respondent Hickey as a successor corporation to his individual business as a dealer under the Act. Respondent S.S. Farms, Inc., is and at all times material herein was, owned, managed, and controlled by respondent Hickey. Respondent Hickey established its policies and directed its activities.
6. On December 20, 1983, respondent James Hickey was sent a warning letter by the APHIS Area Veterinarian-In-Charge respecting deficiencies observed during an inspection of his facilities on August 15, 1983, respecting proper identification of dogs upon acquisition, holding them as required and maintaining the identity of dogs in the records he kept.
7. As specified below, respondents failed to keep and maintain records which fully and correctly disclosed necessary information concerning respondents' purchase of dogs from the Yamhill/McMinnville Dog Pound:
(a) Respondents' records show the purchase of sixteen dogs from the Yamhill/McMinnville Dog Pound on July 30, 1984, when in fact respondents purchased only eight dogs from that pound on that date.
(b) Respondents' records show the purchase of eleven dogs from the Yamhill/McMinnville Dog Pound on July 31, 1984, when in fact no dogs were purchased from that pound by respondents on that date.
(c) Respondents' records show the purchase of seven dogs from the Yamhill/McMinnville Dog Pound on August 6, 1984, when in fact no dogs were purchased from that pound by respondents on that date.
(d) Respondents' records show the purchase of nine dogs from the Yamhill/McMinnville Dog Pound on August 14, 1984, when in fact no dogs were purchased from that pound by respondents on that date.
(e) Respondents' records show the purchase of five dogs from the Yamhill/McMinnville Dog Pound on September 4, 1984, when in fact no dogs were purchased from that pound by respondents on that date.
(f) Respondents' records show the purchase of eleven dogs from the Yamhill/McMinnville Dog Pound on September 7, 1984, when in fact no dogs were purchased from that pound by respondents on that date.
(g) Respondents' records do not show the purchase of dogs from the Yamhill/McMinnville Dog Pound on October 31, 1984, when in fact eight dogs were purchased from that pound by respondents on that date.
(h) Respondents' records show the purchase of a dog from the Yamhill/McMinnville Dog Pound on November 1, 1984, when in fact no dogs were purchased from that pound by respondents on that date.
(i) Respondents' records show the purchase of six dogs from the Yamhill/McMinnville Dog Pound on November 7, 1984, when in fact no dogs were purchased from that pound by respondents that date.
**4 *843 (j) Respondents' records show the purchase of three dogs from the Yamhill/McMinnville Dog Pound on November 9, 1984, when in fact no dogs were purchased from that pound by respondents on that date.
8. As specified below, respondents failed to keep and maintain records which fully and correctly disclosed necessary information concerning respondents' purchase of dogs from the Linn County Dog Control Pound, Albany, Oregon:
(a) Respondents' records do not show the purchase of dogs from the Linn County Dog Pound on March 1, 1985, when in fact six dogs were purchased from that pound by respondents on that date.
(b) Respondents' records show the purchase of three dogs from the Linn County Dog Pound on March 6, 1985, when in fact only two dogs were purchased from that pound by respondents on that date.
(c) Respondents' records show the purchase of six dogs from the Linn County Dog Pound on March 30, 1985, when in fact no dogs were purchased from that pound by respondents on that date.
(d) Respondents' records show the purchase of five dogs from the Linn County Dog Pound on April 3, 1985, when in fact only one dog was purchased from that pound by respondents on that date.
(e) Respondents' records do not show the purchase of dogs from the Linn County Dog Pound on April 5, 1985, when in fact two dogs were purchased from that pound by respondents on that date.
(f) Respondents' records do not show the purchase of dogs from the Linn County Dog Pound on April 8, 1985, when in fact four dogs were purchased from that pound by respondents on that date.
(g) Respondents' records do not show the purchase of dogs from the Linn County Dog Pound on April 12, 1985, when in fact two dogs were purchased from that pound by respondents on that date.
(h) Respondents' records show the purchase of two dogs from the Linn County Dog Pound on April 17, 1985, when in fact no dogs were purchased from that pound by respondents on that date.
(i) Respondents' records show the purchase of four dogs from the Linn County Dog Pound on April 18, 1985, when in fact only two dogs were purchased from that pound on that date.
(j) Respondents' records do not show the purchase of dogs from the Linn County Dog Pound on May 3, 1985, when in fact three dogs were purchased from that pound by respondents on that date.
(k) Respondents' records do not show the purchase of dogs from the Linn County Dog Pound on May 6, 1985, when in fact three dogs were purchased from that pound by respondents on that date.
(l) Respondents' records show the purchase of four dogs from the Linn County Dog Pound on May 7, 1985, when in fact no dogs were purchased from that pound by respondents on that date.
(m) Respondents' records show the purchase of six dogs from the Linn County Dog Pound on May 15, 1985, when in fact only three dogs were purchased from that pound by respondents on that date.
*844 9. As specified below, respondents failed to keep and maintain records which fully and correctly disclosed the necessary information concerning the descriptions and tag numbers of all dogs in respondents' possession and control:
**5 (a) Respondents' records identified a dog with USDA tag number 1627 as a female foxhound, when in fact a male neutered husky-type dog bearing tag number 1627 was found on respondents' premises.
(b) Respondents' records did not show the presence of any airedale-terrier dogs, when in fact an airedale-terrier bearing USDA tag number 1620 was found on respondents' premises.
(c) In connection with the purchase and sale of a golden retriever, respondents' purchase receipt records showed the dog's USDA tag number as 1676. Respondents' sale and disposition records identified this dog by tag number 1684.
(d) Respondents' purchase receipt records identified a spaniel-type dog with tag number 1684. Respondents' sale and disposition records identified a dog bearing the USDA tag number 1684 as a golden retriever.
(e) Respondents' sale records identified a cat with tag number 1628. Respondents' acquisition and holding records make no reference to a cat with tag number 1628.
10. On July 23, 1985, respondents Hickey and S.S. Farms, Inc., were found to have improperly used paper tags instead of official USDA metal or plastic tags, contrary to the regulations, to identify and tag nine dogs in their possession.
11. On or about July 23, 1985, respondents Hickey and S.S. Farms, Inc., refused access to and inspection of their records by APHIS officials and law enforcement officers pertaining to a stolen black labrador pup found at respondents' premises (Tr. 89-91).
12. APHIS inspected respondent Hickey's facility on October 3, 1984, and found the following violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act:
(a) Feed storage room was dirty and did not adequately protect food supplies from infestation or contamination from vermin.
(b) Dog shelters were not structurally sound and did not protect the dogs from predators or possible injury.
(c) Watering receptacles had an excessive buildup of algae.
(d) A contaminated dead calf was present in one of the primary enclosures and was being devoured by some of the dogs.
13. APHIS inspected respondent Hickey's facility on October 23, 1984, and found the following violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act:
(a) Bedding and food storage facilities still had holes allowing vermin to enter and contaminate food and bedding supplies.
(b) One cat's litter was full and overflowing, another cat was not provided a litter pan.
(c) An outside pen for dogs needed wood shavings or bedding to allow the dogs to be off the mud and remain dry.
14. APHIS inspected respondent Hickey's facility on November 14, 1984, and found the following violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act:
*845 (a) The areas where the dogs were kept and housed had scattered trash and broken glass that could cause them physical injury.
**6 (b) The feeder receptacles were caked with contaminated feed.
(c) Dog shelters were not structurally sound and did not protect the dogs from possible injury.
(d) Dogs were not housed in compatible groups in that some injured dogs were housed in the same primary enclosures with healthy dogs.
(e) No suitable method of drainage was provided in the outdoor facilities.
(f) Contaminated dead animal parts were present around the facility.
(g) Shelter was inadequate for dogs kept outdoors when the atmospheric temperature was below 50^ F. and bedding was inadequate in the facility.
(h) There was a large accumulation of excreta in the kennel area.
(i) Watering receptacles were not kept clean.
15. APHIS inspected respondent Hickey's facility on January 29, 1985, and found the following violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act:
(a) Feed was contaminated with rat feces and feed sacks contained holes.
(b) Shelter was inadequate for dogs kept outdoors when the atmospheric temperature was below 50^ F. and bedding was inadequate in the main kennel.
(c) Feed was contaminated with mold and was in a caked, unpalatable form.
(d) Watering receptacles were not kept clean.
(e) There was an accumulation of excreta in the kennel area.
(f) There was no effective program of pest control.
16. APHIS inspected respondent Hickey's facility on March 13, 1985, and found the following violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act:
(a) Food storage and bedding facilities were infested with rat excreta.
(b) Feeding pans were not kept clean.
(c) There was an excessive buildup of excreta in the primary enclosures.
(d) Trash barrels and water buckets were scattered around the premises.
(e) One overly aggressive dog was housed in an enclosure with many other dogs.
17. APHIS inspected respondent Hickey's facility on April 9, 1985, and found the following violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act:
(a) Food storage and bedding facilities were infested with rat and mouse excreta.
(b) Sacks of feed were in the barn that did not adequately protect them from infestation and contamination from vermin.
(c) Primary enclosures for dogs were not structurally sound.
*846 (d) Two dogs were tied down by chains which were less than three times the dogs' length.
(e) Several watering receptacles had an excessive buildup of algae.
(f) Bedding in many of the doghouses was wet.
18. APHIS inspected respondent Hickey's facility on May 15, 1985, and found the following violations of section 2.100(a) of the regulations, 9 C.F.R. s 2.100(a), and the standards issued under the Act:
(a) Self feeders were caked with food and needed to be cleaned and kept free of moisture.
**7 (b) Primary enclosures contained an excessive amount of excreta.
(c) A dog was being held in a transport enclosure which was too small to allow the dog to move freely about.
19. Respondents falsely reported the dollar amount of sales on the annual license renewal report, dated June 18, 1984, listing them to be $9,460, when in fact the sales for the period exceeded $37,000.
Conclusions
1. Respondents failed to maintain their facility in compliance with the regulations and standards and thereby willfully violated section 2.100 of the regulations and sections 3.1, 3.3, 3.4, 3.5, 3.6, 3.7, 3.9 and 3.10 of the standards.
2. Respondents falsely reported the dollar amount of sales on the annual license renewal report dated June 18, 1984, and thereby willfully violated section 3 of the Act, 7 U.S.C. s 2133, and section 2.7 of the regulations, 9 C.F.R. s 2.7.
3. Respondents failed to keep and maintain records which fully and correctly disclosed the necessary information concerning all dogs purchased, acquired, held or otherwise in respondents' possession and control, including but not limited to descriptions and tag numbers, and thereby willfully violated section 10 of the Act, 7 U.S.C. s 2140, and section 2.75 of the regulations, 9 C.F.R. s 2.75.
4. Respondents refused to allow the inspection of records on July 23, 1985, and thereby willfully violated section 16 of the Act, 7 U.S.C. s 2146, and section 2.126 of the regulations, 9 C.F.R. s 2.126.
5. Respondents failed to properly identify and tag nine dogs in respondents' possession and control on July 23, 1985, and thereby violated sections 2.50 and 2.51 of the regulations, 9 C.F.R. ss 2.50, 2.51.
6. These violations warrant the issuance of an order requiring respondents to immediately cease and desist from engaging in such practices, suspending respondents' license for twenty-five years and assessing a civil penalty of $40,000.00.
Discussion
The Animal Welfare Act was enacted in 1966 to achieve three objectives:
"The purposes of this bill, as amended, are (1) to protect the owners of dogs and cats from theft of such pets, (2) to prevent the use or sale of stolen dogs or cats for purposes of research or experimentation and (3) to establish humane standards for the treatment of dogs, cats and certain other animals . . . by animal dealers and medical research facilities." (Senate Report No. 1281, June 15, 1966; 2 U.S. Cong. & Admin. News 66, at 2635.)
*847 In 1976 the Act was amended (Pub L. 94-279) to restate and explain those objectives, which are at the heart of this proceeding.
To better prevent the sale of stolen pets, the Act requires animal dealers to make and keep such records of "the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe". (7 U.S.C. s 2140.) Moreover, dogs and cats must be marked and identified by dealers as specified by the Secretary (7 U.S.C. s 2141).
**8 Congress also directed the Secretary to establish standards for humane care and treatment which dog and cat dealers must observe as the minimum requirements for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, and adequate veterinary care (7 U.S.C. s 2143).
Mr. Hickey both individually and as the alter ego of S&S Farms, Inc., has violated these provisions of the Animal Welfare Act, deliberately, willfully, and cruelly for personal gain and profit.
He was warned on December 20, 1983, that his actions violated the Act, but he continued to improperly mark and identify dogs, to keep records which inadequately showed the identity of the dogs in his possession and to not meet minimum standards for the care and treatment of animals at his facility.
In a previous case involving violations of APHIS requirements designed to thwart those who would traffic in stolen pets, it was pointed out that this objective of the Act may only be attained by strict enforcement and the severe sanction of those who repeatedly violate these requirements. In re Rudolph Vrana, d/b/a Vrana Research Animals, 43 Agric. Dec. 1758 (1984).
Here, there is evidence that Mr. Hickey's deceptive and false records facilitated his acquisition of stolen and fraudulently obtained pets found on his premises. His refusal of access to his records pertaining to a stolen labrador pup found on his premises can only be construed as an effort to conceal the way in which he acquired the stolen pet. On one occasion, his records, for the purchase of two dogs with specified tag numbers and a seller's name, matched hearsay evidence presented by Deputy Sheriff John Strong who testified that two thieves he arrested told him that they sold two dogs they had stolen to Hickey for $30.00 who told them: "I don't care if the dogs are hot; I just don't want the cops out here." (Tr. 274.)
This evidence renders implausible Mr. Hickey's explanation that his inability to pay litigation costs was the reason why he entered a plea of nolo contendere to criminal charges that he received a stolen dog.
However, I am not basing the disposition of this proceeding on Hickey's nolo contendere plea in the criminal proceeding or upon any hearsay evidence concerning his purchase of stolen dogs. It is enough that his falsely kept records facilitated trafficking in stolen pets, obscured the identity of such animals and compounded the difficulties pet owners and law enforcement officers faced when they tried to trace the movement of stolen animals to retrieve them.
Obviously, a cease and desist order against such false recordkeeping and animal identification violations is required. Moreover, substantial civil penalties are warranted. To eliminate any ambiguity in the regulations, the *848 order shall specify that records pertaining to the acquisition or disposition of every dog and cat must be made complete before the close of the business day when the animal was acquired or disposed of by sale or other means.
**9 In 1984, following the 1983 letter of warning, there were ten violations where the purchase of dogs from dog shelters was falsely reported (finding 7) for which a penalty of $200 per violation, or $2000 total, appears appropriate.
In 1985, thirteen similar violations occurred (finding 8), and a higher civil penalty of $500 per violation, or $6500 total, is appropriate.
In respect to five dogs which were incorrectly identified in respondents' records (finding 9), the maximum penalty of $1000 per violation, or $5000 total, is fully warranted and required.
Respondents' use of paper tags for nine dogs in his possession, rather than the type required by the USDA (finding 10), is a lesser offense, but, again, can facilitate deliberate misidentification, and a penalty of $500 is appropriate.
The deliberate refusal of access to respondents' records on July 23, 1985, in denial of a request to inspect them by APHIS officials (finding 11) warrants the imposition of the maximum $1000 penalty.
False underreporting of annual sales in a license renewal report, as Hickey did in his report of June 18, 1984, allows the actual number of animals being bought and sold to be concealed and facilitates trafficking in stolen pets; the maximum penalty of $1000 is required for this proven violation (finding 19).
The remaining findings and conclusions pertain to the way in which Mr. Hickey treated the dogs and cats at his facility.
On October 3, 1983, Dr. David P. Silberman, veterinary medical officer for APHIS, inspected respondents' facility and found twelve dogs in a large pen fouled with feces and urine, trying to feed on a whole dead calf--complete with hide and hooves. He also found that the storage room where feed for the dogs was kept, gave evidence of being vermin infested--it had rat and mice holes and was fouled with rat feces. Doghouses were splintered and in such disrepair they could not be sanitized. There was algae in various water buckets used as the dogs' drinking containers showing that the dogs were not being provided fresh water. See finding 12. Inasmuch as these were the first violations of this type brought to respondents' attention, a minimum civil penalty of $100 for each of the four violations, or $400 total, is the appropriate civil penalty, and shall be assessed.
On October 23, 1984, Dr. Silberman reinspected the facility and found that bedding and food storage facilities still had holes allowing vermin to enter. Two other serious humane treatment requirements, identified in finding 13, were found by him to also have been violated. A civil penalty of $600, or $200 per violation, is the appropriate civil penalty for these violations found on the second inspection, and is being assessed.
On November 14, 1984, Dr. Silberman accompanied by another APHIS veterinary medical officer, Dr. Richard Overton, again inspected respondents' facility. This time nine violations, detailed in finding 14, were found to exist. For these violations, civil penalties of $500 per violation, or $4500 total, is appropriate and is being assessed.
**10 On January 29, 1985, Dr. Overton again inspected respondents' facilities and detected six violations, detailed in finding 15, similar to those found on prior inspections. For these violations a civil penalty of $750 per violation, or $4500 total, is appropriate and shall be assessed.
*849 On March 13, 1985, APHIS officials detected five violations of the same type, as detailed in finding 16. On April 9, 1985, six similar violations were detected, detailed in finding 17. And on May 15, 1985, three violations were found as detailed in finding 18. For these violations the maximum civil penalty of $1000 per violation, or $14,000 total, is warranted and is being assessed.
When the penalties from the various violations are added together, the total civil penalty that respondents should be assessed amounts to $40,000.00.
During the hearing, Mr. Hickey tried to mitigate his culpability on the basis of his performance of a valuable and needed community service. He is one of the largest suppliers of dogs to medical laboratories and hospitals in the Northwest. Congress did indeed recognize the importance of medical research when it enacted the Animal Welfare Act. But Congress made it very clear that the dogs that are sold and used for this purpose are entitled to humane treatment and care. This Mr. Hickey did not provide. Moreover, the dogs he sold from time to time included family pets stolen or fraudulently obtained from their owners. There is nothing in the record before me which evokes any feelings of sympathy to warrant mitigation of the penalties that are being imposed.
Complainant's recommendation that respondents' license be suspended for twenty-five years, rather than revoked to better assure that Mr. Hickey will not again deal in dogs and cats, is sound and shall be so ordered.
ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER
Respondents contend on appeal that the ALJ "erred in finding that Appellant falsely kept records to facilitate trafficking in stolen pets" (Appeal Petition at 1, emphasis added). However, the ALJ made no such finding. Although the ALJ states that "there is evidence that Mr. Hickey's deceptive and false records facilitated his acquisition of stolen and fraudulently obtained pets found on his premises" (Initial Decision at 16, emphasis added), the ALJ did not base his sanction on that evidence but, rather, stated (Initial Decision at 17):
However, I am not basing the disposition of this proceeding on Hickey's nolo contendere plea in the criminal proceeding or upon any hearsay evidence concerning his purchase of stolen dogs. It is enough that his falsely kept records facilitated trafficking in stolen pets, obscured the identity of such animals and compounded the difficulties pet owners and law enforcement officers faced when they tried to trace the movement of stolen animals to retrieve them.
Hence the ALJ concluded that respondents' false records "facilitated trafficking in stolen pets," which is a serious violation irrespective of any intent to actually traffic in stolen animals, but he did not find or conclude that "Appellant falsely kept records to facilitate trafficking in stolen pets" (Appeal Petition at 1, emphasis added). In any event, however, if it were necessary to infer that respondents kept false records to facilitate trafficking in stolen *850 pets, in order to sustain the severe sanction in this case, I would draw that inference from the record in this case.
**11 Respondents challenge some of the ALJ's evidentiary rulings, and the adequacy of the evidence to support some of the ALJ's findings. However, the procedural and evidentiary rules applicable in court proceedings are not applicable in administrative proceedings, [FN2] and it is the Department's policy to make no effort to follow them. [FN3] In addition, the proof here far surpasses the preponderance of the evidence, which is all that is required. [FN4]
Respondents contend that the complaint does not contain an allegation relating to Finding 16(e), which states that "[o]ne overly aggressive dog was housed in an enclosure with many other dogs" on March 13, 1985 (Initial Decision at 12). However, this violation was set forth in the exhibits furnished to respondents prior to the hearing. Complainant's Exhibit 17, p. 2, which was furnished to respondents in advance of the hearing, states, with respect to the March 13, 1985, inspection:
Deficiency #39 Classification and Separation--An aggressive dog was removed from other dogs during the inspection.
Complainant's proposed Finding K(5), filed at the hearing, contains a finding of fact identical to the ALJ's Finding 16(e) (Proposed Findings of Fact at 13), except that the ALJ omitted the citation to CX 17 and the witnesses who would testify as to this matter. This violation on March 13, 1985, was also discussed in complainant's post-hearing brief, as follows (Memorandum of Points and Authorities at 13):
Mr. Williams also testified that there was not adequate separation of animals with one aggressive dog in with other dogs. This dog had to be removed by respondent Hickey. Tr. 51; CX 17.
*851 Respondents did not request a continuance to meet this evidence. In addition, respondents' post-hearing brief does not raise any question as to the adequacy of the complaint to support that finding of fact. Since respondents failed to raise the issue in a timely manner before the ALJ, it is too late now on appeal to raise this issue. [FN5] Furthermore, it is well settled that the formalities and technicalities of court pleading are not applicable in administrative proceedings. [FN6] It is only necessary that the complaint in an administrative proceeding reasonably apprise the litigant of the issues in controversy; any such notice is adequate and satisfies due process in the absence of a showing that some party was misled. [FN7]
Respondents contend that they were improperly denied a jury trial, as provided by the United States Constitution, but it is well settled that a jury trial is not required in an administrative disciplinary proceeding.
Respondents contend that the ALJ erred in not relying upon mitigating factors, but I agree with the ALJ that there "is nothing in the record before me which evokes any feelings of sympathy to warrant mitigation of the penalties that are being imposed" (Initial Decision at 21). Respondents rely primarily, in this respect, on their alleged good behavior subsequent to the filing of the complaint in this case. But it is the consistent practice of this *852 Department not to reduce sanctions imposed for past violations because of post-complaint good conduct. [FN8]
**12 Respondents contend that the sanctions imposed by the ALJ are too harsh. But they are appropriate, in view of respondents' numerous violations occurring over an extended period of time, after prior warnings. Respondents' violations are the exact type of violations the Act was designed to prevent.
It is the policy of this Department to impose severe sanctions for violations of any of the regulatory programs administered by the Department that are repeated or that are regarded by the administrative officials and the Judicial Officer as serious, in order to serve as an effective deterrent not only to the respondents, but also to other potential violators. The basis for the Department's severe sanction policy is set forth at great length in numerous decisions, e.g., In re Spencer Livestock Commission Co., 46 Agric. Dec. ____, slip op. at 213-51 (Mar. 19, 1987) (10-year suspension and $30,000 civil penalty), aff'd, 841 F.2d 1451 (9th Cir. 1988), which is set forth as an appendix to this decision. [FN9]
For the foregoing reasons, the following order should be issued in this proceeding.
*853 Order
Respondents shall comply with each and every provision of the Animal Welfare Act, 7 U.S.C. ss 2131-2156, and the regulations and standards issued thereunder, 9 C.F.R. ss 1.1- 3.142, and shall cease and desist from any violation thereof. In particular, respondents, their agents and employees, directly or through any corporate device, shall cease and desist from failing to:
1. Maintain primary enclosures which are structurally sound and protect animals from possible injury as required by 9 C.F.R. ss 3.1 and 3.4;
2. Provide adequate storage for food and bedding as required by 9 C.F.R. s 3.1;
3. House dogs in compatible groups as required by 9 C.F.R. s 3.9;
4. Provide adequate shelter for dogs kept outdoors when the atmospheric temperature is below 50^ F. as required by 9 C.F.R. s 3.3;
5. Provide clean food receptacles as required by 9 C.F.R. s 3.5;
6. Provide clean watering receptacles as required by 9 C.F.R. s 3.6;
7. Remove debris and excreta from primary enclosures as required by 9 C.F.R. s 3.7;
8. Keep the premises clean and free from trash as required by 9 C.F.R. s 3.7;
9. Provide a suitable method to rapidly eliminate excess water as required by 9 C.F.R. s 3.3;
10. Provide an effective program of pest control as required by 9 C.F.R. s 3.7;
11. Provide adequate primary enclosures as required by 9 C.F.R. s 4;
12. Provide adequate transport enclosures as required by 9 C.F.R. s 12;
13. Allow inspection of respondents' records as required by 7 U.S.C. s 2146 and 9 C.F.R. s 2.126;
14. Keep and maintain records which fully and correctly disclose the necessary information concerning dogs and cats purchased, acquired, held or otherwise in respondents' possession and control, including but not limited to descriptions and tag numbers, as required by 7 U.S.C. s 2140 and 9 C.F.R. s 2.75, and the record of every acquisition or disposition of each dog and cat must be made complete before the end of the business day when the animal was either acquired or disposed of by sale or other means;
**13 15. Accurately report the dollar amount of their sales on every annual license renewal report as required by 7 U.S.C. s 2133 and 9 C.F.R. s 2.7;
16. Properly identify and tag dogs in their possession and control as required by 9 C.F.R. ss 2.50 and 2.51;
17. Provide food to dogs and cats in their possession and control which is wholesome, palatable, of sufficient nutritive value and free from contamination as required by 9 C.F.R. s 3.5; and
18. Provide adequate veterinary care as required by 9 C.F.R. s 10.
Respondents are hereby assessed a civil penalty of $40,000, which shall be paid not later than the 180th day after service of this order, by certified check or money order, made payable to the Treasurer of the United States, and sent to John D. Griffith, Esq., United States Department of Agriculture, Office of *854 the General Counsel, Room 2014 South Building, Washington, D.C. 20250- 1400.
Respondents' license (No. 92-B-50) is suspended for a period of 25 years. During such period of suspension, respondents shall not engage in any activities subject to the Act, whether or not a license would be required.
The cease and desist provisions of this order shall become effective on the day after service of this order on respondents, and the suspension provisions of this order shall become effective on the 30th day after service of this order on respondents.
APPENDIX
Excerpt from In re Spencer Livestock Commission Co., 46 Agric. Dec. ____, slip op. at 213-51 (Mar. 19, 1987), aff'd, 841 F.2d 1451 (9th Cir. 1988).
[Excerpt omitted--Editor.]
____________________
FN1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1068 (1982). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program).
FN2 Fairbank v. Hardin, 429 F.2d 264, 267 (9th Cir.), cert. denied, 400 U.S. 943 (1970) (summaries of records admissible); Swift & Co. v. United States, 317 F.2d 53, 55 (7th Cir. 1963); Swift & Co. v. United States, 308 F.2d 849, 851-52 (7th Cir. 1962); Cella v. United States, 208 F.2d 783, 789 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954); and see American Beef Packers, Inc. v. USDA, 486 F.2d 1048, 1049 (8th Cir. 1973); In re Maine Potato Growers, Inc., 34 Agric. Dec. 773, 791-92 (1975), aff'd, 540 F.2d 518 (1st Cir. 1976); In re Wall, 38 Agric. Dec. 1437, 1446 n.4 (1979) (official department publications admissible), rev'd in part on other grounds, No. 79-3714 (6th Cir. July 10, 1981) (unpublished decision, not to be cited as precedent), printed in 40 Agric. Dec. 927 (1981).
FN3 In re Corona Livestock Auction, Inc., 36 Agric. Dec. 1285, 1309-12 (1977), rev'd on other grounds, 607 F.2d 811 (9th Cir. 1979); In re DeJong Packing Co., 36 Agric. Dec. 1181, 1222- 24 (1977), aff'd, 618 F.2d 1329 (9th Cir.) (2-1 decision), cert. denied, 449 U.S. 1061 (1980); In re Hines, 35 Agric. Dec. 113, 125 n.11 (1976); In re Maine Potato Growers, Inc., 34 Agric. Dec. 773, 791 (1975), aff'd, 540 F.2d 518 (1st Cir. 1976); In re Trenton Livestock, Inc., 33 Agric. Dec. 499, 513 (1974), aff'd per curiam, 510 F.2d 966 (4th Cir. 1975) (unpublished).
FN4 See Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981); In re Rowland, 40 Agric. Dec. 1934, 1941 n.5 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1346 (1978), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem. 614 F.2d 770 (3d Cir. 1980).
FN5 In re Daul, 45 Agric. Dec. 556, 565 (1986); In re Palmer, 44 Agric. Dec. 248, 253 (1985); In re Evans Potato Co., 42 Agric. Dec. 408, 409-10 (1983); In re Robinson, 42 Agric. Dec. 7 (1983), aff'd, 718 F.2d 336 (10th Cir. 1983); In re Winger, 38 Agric. Dec. 182, 187 (1979), appeal dismissed, No. 79-C-126 (W.D. Wis. June 1979); In re Lamers Dairy, Inc. 36 Agric. Dec. 265, 289 (1977), aff'd sub nom. Lamers Dairy, Inc. v. Bergland, No. 77-C-173 (E.D. Wis. Sept. 28, 1977), printed in 36 Agric. Dec. 1642, aff'd, 607 F.2d 1007 (7th Cir. 1979), cert. denied, 444 U.S. 1077 (1980).
FN6 Wallace Corp. v. NLRB, 323 U.S. 248, 253 (1944); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 142-44 (1940).
FN7 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350- 51 (1938); Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 261-62 (D.C. Cir. 1979); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1161 (5th Cir. 1977); L.G. Balfour Co. v. FTC, 442 F.2d 1, 19 (7th Cir. 1971); Bruhn's Freezer Meats of Chicago, Inc. v. USDA, 438 F.2d 1332, 1342 (8th Cir. 1971); Swift & Co. v. United States, 393 F.2d 247, 252-53 (7th Cir. 1968); Cella v. United States, 208 F.2d 783, 788-89 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954); American Newspaper Pub. Ass'n v. NLRB, 193 F.2d 782, 799-800 (7th Cir. 1951), cert. denied sub nom. International Typographical Union v. NLRB, 344 U.S. 816 (1952); Mansfield Journal Co. v. FCC, 180 F.2d 28, 36 (D.C. Cir. 1950); E.B. Muller & Co. v. FTC, 142 F.2d 511, 518-19 (6th Cir. 1944); A.E. Staley Mfg. Co. v. FTC, 135 F.2d 453, 454-55 (7th Cir. 1943); NLRB v. Pacific Gas & Elec. Co., 118 F.2d 780, 788 (9th Cir. 1941); In re Sterling Colo. Beef Co., 35 Agric. Dec. 1599, 1601 (1976) (ruling on certified questions), final decision, 39 Agric. Dec. 184 (1980), appeal dismissed, No. 80-1293 (10th Cir. Aug. 11, 1980); In re Holcomb, 35 Agric. Dec. 1165, 1173-74 (1976).
FN8 In re Spencer Livestock Comm'n Co., 46 Agric. Dec. ____, slip op. at 235 (Mar. 19, 1987), aff'd, 841 F.2d 1451 (9th Cir. 1988); In re Mountainside Butter & Egg Co., 38 Agric. Dec. 789, 800 (1978) (remand order), final decision, 39 Agric. Dec. 862, 863-64 (1980), aff'd, No. 80-3898 (D.N.J. June 23, 1982), aff'd mem., 722 F.2d 733 (3d Cir. 1983), cert. denied, 465 U.S. 1066 (1984); In re American Fruit Purveyors, Inc., 38 Agric. Dec. 1372, 1387-88 (1979), aff'd per curiam, 630 F.2d 370 (5th Cir. 1980), cert. denied, 450 U.S. 997 (1981); In re L.R. Morris Produce Exch., Inc., 37 Agric. Dec. 1112, 1120 (1978); In re Breckenridge Auction & Sales Co., 36 Agric. Dec. 1522, 1530 (1977); In re J. Acevedo & Sons, 34 Agric. Dec. 120, 135, aff'd per curiam, 524 F.2d 977 (5th Cir. 1975); In re Miller, 33 Agric. Dec. 53, 62, 81, aff'd per curiam, 498 F.2d 1088, 1089 (5th Cir. 1974); and see In re Catanzaro, 35 Agric. Dec. 26, 35 (1976), aff'd, No. 76-1613 (9th Cir. Mar. 9, 1977), printed in 36 Agric. Dec. 467.
FN9 Severe sanctions issued pursuant to the Department's severe sanction policy were sustained, e.g., in In re Blackfoot Livestock Comm'n Co., 45 Agric. Dec. 590 (l986), aff'd, 810 F.2d 916 (9th Cir. 1988); In re Collier, 38 Agric. Dec. 957, 971-72 (1979), aff'd per curiam, 624 F.2d 190 (9th Cir. 1980) (unpublished); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1362-63 (l978), aff'd, No. 78-3134 (D.N.J. May 25, l979), aff'd mem., 614 F.2d 770 (3d Cir. l980); In re Muehlenthaler, 37 Agric. Dec. 313, 330-32, 337-52, aff'd mem., 590 F.2d 340 (8th Cir. l978); In re Mid-States Livestock, Inc., 37 Agric. Dec. 547, 549-51 (l977), aff'd sub nom. Van Wyk v. Bergland, 570 F.2d 701 (8th Cir. l978); In re Cordele Livestock Co., 36 Agric. Dec. 1114, 1133-34 (l977), aff'd per curiam, 575 F.2d 879 (5th Cir. l978) (unpublished); In re Livestock Marketers, Inc., 35 Agric. Dec. l552, l561 (l976), aff'd per curiam, 558 F.2d 748 (5th Cir. l977), cert. denied, 435 U.S. 968 (l978); In re Catanzaro, 35 Agric. Dec. 26, 31-32 (l976), aff'd, No. 76-1613 (9th Cir. Mar. 9, l977), printed in 36 Agric. Dec. 467 (l977); In re Maine Potato Growers, Inc., 34 Agric. Dec. 773, 796, 801 (l975), aff'd, 540 F.2d 518 (1st Cir. l976); In re M. & H. Produce Co., 34 Agric. Dec. 700, 750, 762 (l975), aff'd, 549 F.2d 830 (D.C. Cir.) (unpublished), cert. denied, 434 U.S. 920 (1977); In re Southwest Produce, Inc., 34 Agric. Dec. 160, 171, 178, aff'd per curiam, 524 F.2d 977 (5th Cir. l975); In re J. Acevedo & Sons, 34 Agric. Dec. 120, 133, 145-60, aff'd per curiam, 524 F.2d 977 (5th Cir. l975); In re Marvin Tragash Co., 33 Agric. Dec. 1884, 1913-14 (1974), aff'd, 524 F.2d 1255 (5th Cir. l975); In re Trenton Livestock, Inc., 33 Agric. Dec. 499, 515, 539-50 (1974), aff'd per curiam, 510 F.2d 966 (4th Cir. l975) (unpublished); In re Miller, 33 Agric. Dec. 53, 64-80, aff'd per curiam, 498 F.2d 1088, 1089 (5th Cir. 1974).