*1 Cease and desist order — Civil penalty — License revocation — Debarment from animal exhibition industry — Recordkeeping violations — Failing to provide adequate veterinary care — Failure to properly transport animals — Failure to provide food appropriate to species — Preponderance of evidence.
The Judicial Officer affirmed the decision by Chief Judge Palmer (Chief ALJ) that Respondent willfully failed to provide urgent veterinary care to an elephant (9 C.F.R. § 2.40); that Respondent willfully failed to provide routine skin care and routine foot care to two elephants (9 C.F.R. § 2.40); that Respondent willfully handled eight llamas and two elephants in a manner that caused trauma, overheating, behavioral stress, and physical harm and discomfort to the animals (9 C.F.R. §§ 2.100(a), .131(a)(1)); that Respondent willfully failed to keep and maintain complete records on his animals (7 U.S.C. § 2140; 9 C.F.R. § 2.75(b)(1)); that Respondent willfully transported 11 animals in a primary conveyance, which conveyance did not have a properly designed and constructed cargo space (9 C.F.R. §§ 2.100, 3.138(a)); that Respondent willfully transported an elephant while she was in obvious physical distress (9 C.F.R. §§ 2.100(a), 3.140(a)); that Respondent willfully transported eight llamas in a primary enclosure which did not provide sufficient space (9 C.F.R. §§ 2.100(a), 3.128); that Respondent willfully transported animals in a primary conveyance without sufficient clean, suitably absorbent litter to absorb and cover excreta (9 C.F.R. §§ 2.100(a), 3.137(d)); and that Respondent willfully failed to provide three elephants with food appropriate to that species (9 C.F.R. §§ 2.100(a), 3.129(a)) as required by the Animal Welfare Act and the Regulations and Standards. The Judicial Officer also affirmed the sanction, which was the same as that recommended by the administrative officials, in which the Chief ALJ assessed Respondent a civil penalty of $200,000; permanently revoked Respondent's license and permanently disqualified Respondent from obtaining a license under the Animal Welfare Act and the Regulations; and barred Respondent, directly or indirectly through any corporate entity, agent, or other device, from engaging in any activity as an exhibitor or dealer within the meaning of the Animal Welfare Act and the Regulations; in particular, and without limitation of the preceding clause, barred Respondent from operating as an independent contractor in conjunction with any exhibitor or dealer, or from leasing, renting, or otherwise providing animals to any person or entity or undertaking engaged in business as an exhibitor or dealer. The Department's sanction policy places great weight on the sanction recommendations of administrative officials. Burden of proof in Animal Welfare Act cases is a preponderance of the evidence. An action is willful if done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. Individuals are bound by federal laws and regulations, irrespective of bad advice by federal employees. The Regulations and Standards are not an instruction manual, but require that licensees maintain an acceptable level of husbandry as set forth in 9 C.F.R. §§ 3.125-.142. It is not an unreasonable interpretation of 9 C.F.R. § 2.75(b)(1) for Respondent to be expected to carry copies of animals' records when the animals are being transported or the regulation would be ineffective for its purpose. The act of a person employed by or acting on behalf of an exhibitor within the scope of the employee's office is deemed the act of the exhibitor (7 U.S.C. § 2139).
*2 Robert A. Ertman, Esq., Frank Martin, Jr., Esq., and Kenneth H. Vail, Esq., for Complainant.
Ron Koch, Esq., Albuquerque, New Mexico, for Respondent.
Initial Decision issued by Victor W. Palmer, Chief Administrative Law Judge.
Decision and Order issued by William G. Jenson, Judicial Officer.
The Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations and standards issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-3.142) [hereinafter the Regulations and Standards]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice], by filing a Complaint on August 22, 1997.
The Complaint, in pertinent part, alleges that:
I
A. John D. Davenport, doing business as King Royal Circus, hereinafter referred to as [R]espondent, is an individual whose address is Post Office Box 683, Von Ormy, Texas 78073.
B. The [R]espondent, at all times material hereto, was licensed and operating as an exhibitor as defined in the [Animal Welfare] Act and the [R]egulations.
II
On August 6, 1997, police officers in Albuquerque, New Mexico, discovered a trailer in a hotel parking lot that held two live elephants, one dead elephant, and eight live llamas. The temperature inside the trailer was about 130 degrees Fahrenheit. The attendants, employed by the [R]espondent, were arrested and charged with animal cruelty, and the animals were seized. The animals were transported from Las Vegas, Nevada[,] to Dillon, Colorado, beginning on or about August 3, 1997, and were being transported from Dillon, Colorado[,] to Von Ormy, Texas.
A. From on or about August 3, 1997, to on or about August 6, 1997, the [R]espondent 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 urgently needed veterinary care to animals in immediate need of care, in willful violation of section 2.40 of the [R]egulations (9 C.F.R. § 2.40), resulting in the death of an elephant known as “Heather.” Respondent also failed to provide routine veterinary care for animals in need of care for an unknown period of time, in willful violation of section 2.40 of the [R]egulations (9 C.F.R. § 2.40).
B. From on or about August 3, 1997, to on or about August 6, 1997, the [R]espondent handled animals (elephants and llamas) in a manner which caused trauma, overheating, behavioral stress, physical harm, and unnecessary discomfort to the animals, in willful violation of section 2.100(a) of the [R]egulations (9 C.F.R. [§] 2.100(a)) and section 2.131(a)(1) of the [Regulations] (9 C.F.R. § 2.131(a)(1)).
*3 C. From on or about August 3, 1997, to on or about August 6, 1997, the [R]espondent failed to keep and maintain complete records showing the acquisition, disposition, and identification of animals, in willful violation of section 10 of the [Animal Welfare] Act (7 U.S.C. § 2140) and section 2.75(b)(1) of the [R]egulations (9 C.F.R. § 2.75(b)(1)).
D. From on or about August 3, 1997, to on or about August 6, 1997, the [R]espondent willfully violated section 2.100(a) of the [R]egulations (9 C.F.R. [§] 2.100(a)) and the [S]tandards specified below:
1. The animal cargo space of a primary conveyance used in transporting live animals was not designed, constructed, and maintained in good repair so as to provide necessary ventilation and to otherwise protect the health and ensure the safety and comfort of the animals contained therein at all times (9 C.F.R. § 3.138(a));
2. Respondent transported animals that were in obvious physical distress (9 C.F.R. § 3.140(a));
3. Primary 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); and
4. Primary enclosures for animals did not contain clean litter of a suitable absorbent material, in sufficient quantity to absorb and cover excreta (9 C.F.R. § 3.137(d)).
E. For an unknown period of time prior to August 6, 1997, the [R]espondent failed to provide elephants with food appropriate for that species, in willful violation of section 2.100(a) of the [R]egulations (9 C.F.R. [§] 2.100(a)) and section 3.129(a) of the [S]tandards (9 C.F.R. § 3.129(a)).
Complaint ¶¶ I, II.
On September 18, 1997, Respondent filed an Answer admitting the allegations in paragraph I of the Complaint, but denying all other material allegations of the Complaint. Chief Administrative Law Judge Victor W. Palmer [hereinafter Chief ALJ] presided over a hearing in Albuquerque, New Mexico, from October 6, 1997, through October 8, 1997. Frank Martin, Jr., Esq., Robert A. Ertman, Esq., and Kenneth H. Vail, Esq., Office of the General Counsel, United States Department of Agriculture, represented Complainant. Ron Koch, Esq., Albuquerque, New Mexico, represented Respondent.
On October 30, 1997, Complainant filed Complainant's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof; and on November 17, 1997, Respondent filed Respondent's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof.
On December 11, 1997, the Chief ALJ issued a Decision and Order [hereinafter Initial Decision and Order] in which the Chief ALJ: (1) ordered Respondent to cease and desist from (a) failing to maintain complete records showing the acquisition, disposition, and identification of animals; (b) failing to maintain a current, written program of veterinary care under the supervision of a veterinarian; (c) failing to provide veterinary care to animals as needed; (d) failing to handle animals in a manner which does not cause trauma, overheating, behavioral stress, physical harm, and unnecessary discomfort to the animals; (e) failing to use for the transportation of animals a primary conveyance which has an animal cargo space designed and constructed to provide necessary ventilation and to otherwise protect the health and ensure the safety and comfort of the animals contained in the cargo space at all times; (f) transporting animals which are in obvious physical distress; (g) transporting animals in primary enclosures which do not provide sufficient space to allow each animal to make normal postural and social adjustments with adequate freedom of movement; (h) transporting animals in primary enclosures which do not contain clean litter of a suitable absorbent material in sufficient quantity to absorb and cover excreta; and (i) failing to provide animals with food appropriate for that species; (2) assessed Respondent a civil penalty of $200,000; (3) permanently revoked Respondent's license and permanently disqualified Respondent from obtaining a license under the Animal Welfare Act and the Regulations; and (4) barred Respondent, directly and indirectly through any corporate entity, agent, or other device, from engaging in any activity as an exhibitor or dealer within the meaning of the Animal Welfare Act and the Regulations; in particular, and without limitation of the preceding clause, barred Respondent from operating as an independent contractor in conjunction with any exhibitor, and from leasing, renting, or otherwise providing animals to any person or entity or undertaking engaged in business as an exhibitor or dealer.
*4 On January 20, 1998, Respondent appealed to the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35).1
Complainant filed Complainant's Response to Appeal on February 10, 1998. On February 11, 1998, the Hearing Clerk transmitted the record of the proceeding to the Judicial Officer for decision.
Based upon a careful consideration of the record in this proceeding, I agree with the Chief ALJ that Respondent willfully violated the Animal Welfare Act and the Regulations and Standards, as alleged in the Complaint, and I agree with the sanction imposed by the Chief ALJ against Respondent (Initial Decision and Order at 9-10, 27-29). Therefore, pursuant to the Rules of Practice (7 C.F.R. § 1.145(i)), I adopt the Chief ALJ's Initial Decision and Order as the final Decision and Order. Additions or changes to the Initial Decision and Order are shown by brackets, deletions are shown by dots, and minor editorial changes are not specified. Additional conclusions by the Judicial Officer follow the Chief ALJ's discussion of sanctions.
Complainant's exhibits are designated by the letters “CX”; Respondent's exhibits are designated by the letters “RX”; and transcript references are designated by “Tr.”
Applicable Statutory Provisions, Regulations, and Standards
7 U.S.C.:
TITLE 7—AGRICULTURE
. . . .
CHAPTER 54—TRANSPORTATION, SALE, AND HANDLING
OF CERTAIN ANIMALS
. . . .
§ 2140. Recordkeeping by dealers, exhibitors, research facilities, intermediate handlers, and carriers
Dealers and exhibitors shall make and retain for such reasonable period of time as the Secretary may prescribe, such records with respect to the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe. . . . Such records shall be made available at all reasonable times for inspection and copying by the Secretary.
§ 2149. Violations by licensees
(a) Temporary license suspension; notice and hearing; revocation
If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such li- cense, if such violation is determined to have occurred.
(b) Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order
*5 Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such vio- lation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals. 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. §§ 2140, 2149(a)-(b).
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. This term excludes retail pet stores, horse and dog races, organizations sponsoring and all persons participating in State and county fairs, livestock shows, rodeos, field trials, coursing events, purebred dog and cat shows and any other fairs or exhibitions intended to advance agricultural arts and sciences as may be determined by the Secretary.
Exotic animal means any animal not identified in the definition of “animal” provided in this part that is native to a foreign country or of foreign origin or character, is not native to the United States, or was introduced from abroad. This term specifically includes animals such as, but not limited to, lions, tigers, leopards, elephants, camels, antelope, anteaters, kangaroos, and water buffalo, and species of foreign domestic cattle, such as Ankole, Gayal, and Yak.
*6 . . . .
PRT 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;
(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.
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.
*7 . . . .
SUBPART I—MISCELLANEOUS
. . . .
§ 2.131 Handling of animals.
(a)(1) Handling of all animals shall be done as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort.
. . . .
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
. . . .
§ 3.128 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
§ 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.
. . . .
TRANSPORTATION STANDARDS
. . . .
§ 3.137 Primary enclosures used to transport live animals.
. . . .
(d) Primary enclosures used to transport live animals as provided in this section shall have solid bottoms to prevent leakage in shipment and still be cleaned and sanitized in a manner prescribed in § 3.131 of the standards, if previously used. Such primary enclosures shall contain clean litter of a suitable absorbant material, which is safe and nontoxic to the live animals contained therein, in sufficient quantity to absorb and cover excreta, unless the animals are on wire or other nonsolid floors.
. . . .
§ 3.138 Primary conveyances (motor vehicle, rail, air, and marine).
(a) The animal cargo space of primary conveyances used in transporting live animals shall be designed and constructed to protect the health, and ensure the safety and comfort of the live animals contained therein at all times.
. . . .
§ 3.140 Care in transit.
(a) During surface transportation, it shall be the responsibility of the driver or other employee to visually observe the live animals as frequently as circumstances may dictate, but not less than once every 4 hours, to assure that they are receiving sufficient air for normal breathing, their ambient temperatures are within the prescribed limits, all other applicable standards are being complied with and to determine whether any of the live animals are in obvious physical distress and to provide any needed veterinary care as soon as possible. . . . No animal in obvious physical distress shall be transported in commerce.
*8 9 C.F.R. §§ 1.1; 2.40, .75(b)(1), .100(a), .131(a)(1); 3.128, .129(a), .137(d), .138(a), .140(a).
CHIEF ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION AND ORDER
(AS MODIFIED)
. . . All proposed findings, conclusions, and arguments have been considered. To the extent indicated, they have been adopted; otherwise they have been rejected as not relevant or not supported by the evidence.
. . . .
For the reasons . . . stated [in this Decision and Order, infra], an Order is being issued requiring Respondent to cease and desist from violating the [Animal Welfare] Act, revoking his license as an animal exhibitor, and assessing a civil penalty against him of $200,000.
Findings of Fact
1.Respondent, John D. Davenport, doing business as King Royal Circus, is an individual whose address is Post Office Box 683, Von Ormy, Texas 780[7]3. Respondent, at all times material to this proceeding, was licensed and operating as a [Class C] exhibitor as defined in the [Animal Welfare] Act and the Regulations. (Answer.)
2.At all times material to this proceeding, Ben Davenport, Respondent's son, was employed by the Respondent. His duties included caring for the animals involved in this case. Ben Davenport does not have any formal training in animal care. (Tr. 581-82.)
3.On or about July 18, 1997, through July 28, 1997, Respondent, through his employee and [other] son, John J. “Chewy” Davenport, exhibited three elephants—two African and one Asian—and eight llamas at a circus in Las Vegas, Nevada (CX 124 [at 2], CX 128 [at 2-5]).
4.On July 24, 1997, APHIS Animal Care Inspector, Gregory Wallen, conducted, at the Cashman Event Center in Las Vegas, an inspection of Respondent's animals, his records, and the trailer used to transport the animals. Mr. Wallen cited Respondent for recordkeeping and veterinary care violations. Specifically, records pertaining to the acquisition and disposition of the animals were not available for inspection; and the program of veterinary care had not been reviewed by the attending veterinarian since February 1996. (RX 1 [at 2].) Mr. Wallen questioned Chewy Davenport about the lack of ventilation in the trailer used to transport the animals and was told that the doors were left open when the animals were inside [(Tr. 180-83)]. Mr. Wallen accepted Mr. Davenport's explanation and decided not to record a violation. Mr. Wallen admitted at the hearing that . . . [he did not cite Respondent for numerous, serious violations, for which Respondent should have been cited,] which [Mr. Wallen] deeply regrets. (Tr. 157-58[, 573].) Mr. Wallen also did not cite any veterinary care or skin and foot care violations; however, the elephants had been bathed and coated with [“a heavy coat of oil, a thick coat of oil”] immediately prior to his arrival, possibly obscuring the condition of their skin (Tr. 155).
5. On or about July 28, 1997, the animals were moved from Las Vegas, Nevada, to Pahrump, Nevada. The animals were held in Pahrump for approximately one week, until August 3, 1997. (Tr. 51-58, 151-53; CX 124, CX 128.) While in Nevada, Chewy Davenport did not have the appropriate food available for the elephants and instead fed them alfalfa hay and rabbit pellets (CX 124 [at 2]).
*9 6.While in Pahrump, Nevada, the African elephant named Heather began experiencing diarrhea. She lost weight and stopped eating and drinking. Chewy Davenport treated the elephant by feeding her [plain white] bread and walking her. She did not receive any veterinary care, but began to show some improvement. (Tr. 53-58, 151-53; CX 128.)
7.On August 3, 1997, Ben Davenport picked up the animals in Pahrump in order to transport them to Dillon, Colorado. He was accompanied by John Davis. When he arrived in Dillon, Colorado, on August 5, 1997, Ben Davenport noticed that Heather was not eating. He called his father who advised him to return to Texas as quickly as possible. (Tr. 614-15, 631; CX 124.)
8.On August 6, 1997, Ben Davenport arrived in Albuquerque, New Mexico. At approximately 5:00 p.m., Ben Davenport checked the animals and noticed that Heather was down. He did not contact a veterinarian or his father. Instead, he had a tire changed and then traveled to the airport to pick up John Boling, who was to accompany him on the remainder of the trip. Ben Davenport parked the trailer at the Wyndham Hotel while he walked to the airport to meet Mr. Boling. John Davis remained with the trailer. ([CX 115 at 2,] CX 124 [at 1-2].)
9.At approximately 6:54 p.m. on August 6, 1997, Albuquerque police officers John Guilmette, Duffy Ryan, and John Corvino entered the parking lot of the Wyndham Hotel while on bicycle patrol. The officers spotted the trailer and noticed that it was swaying back and forth despite the absence of any strong wind. They observed urine and fecal matter leaking from the [trailer], which was accompanied by a strong odor. In addition, they noticed that the [trailer] did not have ventilation except for two small vents at the front of the [trailer]. (Tr. 78-80; CX 115-117.)
10.The officers approached the truck and asked John Davis what was in the trailer. Mr. Davis was evasive and refused to open the doors of the trailer; however, the officers could see animals through the vents. When Ben Davenport returned, he was advised of his [Miranda] rights [under the United States Constitution not to answer the officers' questions, but that anything that Ben Davenport said might be used against him in a court of law (CX 18 at 3, CX 117 at 2)]. Ben Davenport was also evasive about the contents of the trailer, first stating that it contained only two elephants, then that there were also six llamas. The officers instructed Ben Davenport to open the trailer. (Tr. 80-89; CX 115-117.)
11.When the trailer was opened, [the officers] discovered that [it contained] eight llamas, two live elephants, and one dead elephant. All eight llamas were contained in the “gooseneck” portion of the trailer. The trailer also contained circus equipment in the area with the elephants. There was very little room for the animals to move. The bedding was full of urine and feces, which was leaking out of the trailer. (CX 115- 117.)
12.Heat was emanating from the trailer, which was parked on asphalt, in the sun, and had virtually no ventilation (Tr. 78- 80; CX 115-117). The official temperature in Albuquerque at 7:00 p.m. was 8[6] degrees [and 20 percent humidity (CX 18 at 3, CX 117 at 2-3)]. At 5:00 p.m., when the trailer arrived in Albuquerque, the official temperature was 88 degrees (CX 4).
*10 13.The [surviving] animals were transported to the Albuquerque Biological Park. They were accompanied by Ben Davenport who continued to care for them until the City [of Albuquerque] was awarded temporary custody and the animals were moved to the Rio Grande Zoological Park . . . [where $20,000 in modifications were made to the brand new, never used, rhino barn facility, to accommodate the two elephants, Irene and Donna] (Tr. [310-11,] 315-16).
14.The care given by Ben Davenport was observed and supervised by [Rio Grande Zoological P]ark personnel. The [Rio Grande Zoological P]ark took over responsibility for feeding the animals after Ben [Davenport] reported being unable to get the elephants to eat nutritional supplements. [Rio Grande Zoological] Park personnel found that the elephants took the supplements readily. Ben [Davenport] did not possess the equipment necessary for skin and foot care[, which skin and foot care had been long neglected]. The [Rio Grande Zoological P]ark provided the appropriate tools, and allowed [Ben Davenport] to provide the needed care. However, when Ben [Davenport] attempted to trim . . . Donna's feet on his own, he cut too far, causing redness [and risking disease and lameness]. (Tr. 362-6[5]; CX 110[-111].)
15.A necropsy performed on Heather revealed that she died as a result of salmonellosis—an infection caused by the bacteri[um], salmonella typhi [murium]. The infection caused septicemia (the spread of the infection through the blood stream), gastritis (inflammation of the stomach), and colitis (inflammation of the colon). (Tr. 406, 425-26; CX 51 [at 3].) [Carcass weight on the truck by tare weight scales at the landfill where the necropsy occurred was determined to be 2,400 pounds, which is over 1,000 pounds below the International Species Inventory System (ISIS) minimum weight range of 3,500 to 4,000 pounds for an elephant of her age and species (CX 51 at 4).]
16.Salmonella is a common pathogen found in soil, feces, and carried by animals. Infection, however, is not common, as healthy animals are generally resistant to the bacteria. [Animals in the wild do not often contract salmonellosis.] Susceptibility can be increased by a number of factors, including stress of [overheating, stress of overcrowding, stress of] transportation, previous illnesses, immuno-incompetence, nutritional inadequacy, or age. (Tr. 240[-42], 28[3]-88, 353.)
17.Death from salmonell[osis] can be very painful, and [salmonellosis] can cause death in 1 to 2 days. Feces and urine stains on Heather's stomach, as well as abrasions and contusions on her face, indicate that she struggled before her death. [The other two elephants, behaving as a family unit, could have tried to lift Heather, but it is nevertheless clear that Heather was paddling her legs, attempting to get up.] (Tr. 348-49[, 352], 368, 421, 444-45; CX 5, CX 12, CX 51.)
18.The infection may have caused the diarrhea Heather was suffering prior to her death. Diarrhea is a serious illness in elephants, almost to the point of being a medical emergency, due in part to the fact that it can be an indication of salmonella[, which is potentially life-threatening to a massive animal like an elephant]. Veterinary attention should almost always be sought when an elephant experiences diarrhea. [Physiologically, elephants are similar to horses, emitting hard, dry, and formed feces, because they both pull a large quantity of water from the lower gut, both animals being “hind gut fermentors.”] (Tr. 243, 439.)
*11 19.The other African elephant, Donna, also had the salmonella [typhimurium infection] and was suffering from diarrhea. Additionally, Donna was also undernourished. She [also] weighed more than 1,000 pounds less than [the minimum weight of] an average African elephant of her age [according to the International Species Inventory System (ISIS)]. The prominence of her spine indicated poor nutrition [over a long duration], and angular deformities of her legs indicated a possible calcium [or other mineral] deficiency. [Donna is poorly muscled around the hips, head, and shoulders, which is another long-standing condition.] (Tr. 248-49, 378, 453-59; CX 76.) Blood work done on both Donna and the Asian elephant, Irene, indicated that they were suffering from anemia and poor nutrition. (Tr. 456-61; CX 72, CX 73.)
20.Both of the African elephants, Donna and Heather, had skin that was in poor condition. Their skin was overgrown and contained deep cracks indicative of years of improper skin care that had allowed an excessive build up of skin which made it difficult for the animals to move and prevented adequate dissipation of heat [by transpiration]. The feet of both elephants were uneven and deeply creviced, with dirt and fecal matter lodged in the cracks, which could eventually lead to lameness or infection. (Tr. 239-40, 248, 250, 256, 356-61, 364- 73, 376; CX 8-13, CX 22-26, CX 28 . . ., CX 39, CX 40, CX 42, CX 76, CX 78, CX 79.)
21.The Asian elephant, Irene, had some flaky skin which should have been scrubbed off, but was not seriously affecting the health of the animal (Tr. 376 [-77] . . .).
22.On August 7, 1997, Warren Striplin, an APHIS animal care inspector, conducted in Albuquerque, an inspection of Respondent's animals, records, and transport trailer, and he recorded the following violations:
A.Eight llamas were transported in an area which measured approximately 8 feet by 8 feet, which was insufficient space for the animals to make normal postural and social adjustments [(9 C.F.R. § 3.128).]
B.All eight llamas and two elephants were allowed to eat green vegetation, which has not had its nutritive value assessed [(9 C.F.R. § 3.129(a)).]
C.The trailer used to transport the animals was filled with wet hay, feces, and urine, and smelled of ammonia [(9 C.F.R. § 3.137(d)).]
D.The brake cable from the truck to the trailer was severed [(9 C.F.R. § 3.138(a)).]
E.Records pertaining to the acquisition and disposition of animals, and records of animals on hand were not available for inspection [(9 C.F.R. § 2.75(b)).]
F.Animals were not handled in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort in that they were transported in conditions of extreme heat [(9 C.F.R. § 2.131(a)(1)).]
G.A written program of veterinary care could not be located for inspection [(9 C.F.R. § 2.40).]
H.Veterinary medical records could not be located for inspection [(9 C.F.R. § 2.40).]
*12 I.Veterinary care was not obtained for Heather after ascertaining that she was ill in Dillon, Colorado [(9 C.F.R. § 2.40).]
J.The left hind foot of the African elephant, Donna, showed extensive cracks and fissures that required foot maintenance or veterinary care [(9 C.F.R. § 2.40).]
K.The skin of both surviving elephants was excessively dry and scabby, with the appearance that there had been very infrequent or non-existent bathing or skin care of the elephants [(9 C.F.R. § 2.40).]
L.Donna was suffering from profuse diarrhea [(9 C.F.R. § 2.40).]
M.The openings in the primary enclosure used to transport the animals did not provide adequate ventilation. The upper restraining bar between the animals and the door was missing, leaving only a single, lower bar to contain the animals if the door was left open during transit. [(9 C.F.R. § 3.137(a).)]
CX 75 [at 2-5].
23.Warren Striplin conducted three follow-up inspections on August 8, 9, and 10, 1997. In his inspection reports, he noted that the following conditions were corrected:
A.On August 8, 1997, the trailer was cleared of all wet hay, feces, and urine [(9 C.F.R. § 3.137(d))]; and the brake cable was repaired [(9 C.F.R. § 3.138(a))]. (CX 101 [at 2].)
B.On August 9, 1997, there was sufficient nutritive food for the animals [(9 C.F.R. § 3.129(a))]; Donna's left hind foot was treated [(9 C.F.R. § 2.40)]; and both elephants were bathed [(9 C.F.R. § 2.40)]. (CX 102 [at 2].)
C.On August 10, 1997, the restraining bars were repaired; records of acquisition and disposition were made available for inspection [(9 C.F.R. § 2.75(b))]; and a written program of veterinary care was provided [(9 C.F.R. § 2.40).] (CX 103 [at 2].)
All other violations remained uncorrected. In addition, on August 10, 1997, the following new violations were noted:
A.The sheet metal on the top of the trailer over the gooseneck area where the llamas were transported was torn. There was an attempt to repair the damage with a sheet metal patch on the roof of the trailer; however, portions of the metal were loose. [(9 C.F.R. § 3.137(a)(1).)]
B.Two areas inside the trailer had long bolts protruding into the trailer [(9 C.F.R. § 3.137(a)(2)).]
C.The floor of the . . . trailer was showing evidence of moderate to severe wear. The top laminated layers of the plywood [were] peeling and wrinkling. [(9 C.F.R. § 3.138(a).)]
D.Donna's right hind foot was in need of trimming as it had a deep wrinkle in the middle of the foot and the edges around the foot were uneven [(9 C.F.R. § 2.40).]
CX 103 [at 2-3].
Conclusions of Law
1.The Secretary has jurisdiction in this matter.
2.Respondent willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) on August 3, 4, 5, and 6, 1997, by failing to provide urgent veterinary care for the African elephant named Heather.
3.Respondent willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) by failing to provide routine skin and foot care to the elephants known as Donna and Heather.
*13 4.Respondent willfully violated sections 2.100(a) and 2.131(a)(1) of the Regulations (9 C.F.R. §§ 2.100(a), .131(a)(1)) on August 6, 1997, by handling eight llamas and two elephants in a manner that caused trauma, overheating, behavioral stress, physical harm, and unnecessary discomfort to the animals, in that he confined them in an [inadequately] ventilated trailer in conditions of excessive heat, with a dead elephant.
5.Respondent 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)) on August 7, 8, and 9, 1997, by failing to keep and maintain complete records showing the acquisition, disposition, and identification of eight llamas and three elephants.
6.Respondent willfully violated section 2.100(a) of the Regulations . . . (9 C.F.R. § 2.100(a)) and section 3.138(a) of the Standards (9 C.F.R. § 3.138(a)) on August 3, 4, 5, [and] 6, 1997, by using, for the transportation of 11 animals, a primary conveyance, which did not have an animal cargo space designed and constructed to provide necessary ventilation and to otherwise protect the health and ensure the safety and comfort of the animals contained [in the cargo space].
7.Respondent willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.140(a) of the Standards (9 C.F.R. § 3.140(a)) on August 3, 4, 5, and 6, 1997, by transporting the elephant, Heather, while she was in obvious physical distress.
8.Respondent willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.128 of the Standards (9 C.F.R. § 3.128) on August 3, 4, 5, and 6, 1997, by transporting eight llamas in a primary enclosure which did not provide sufficient space to allow each animal to make normal postural and social adjustments with adequate freedom of movement.
9. Respondent willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.137[(d)] of the Standards (9 C.F.R. § [3]. 137(d)) on August 6, 1997, by transporting three elephants and eight llamas in a primary enclosure which did not contain clean litter of a suitable absorbent material in sufficient quantity to absorb and cover excreta.
10.Respondent willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.129(a) of the Standards (9 C.F.R. § 3.129(a)) by failing to provide three elephants with food appropriate for that species.
Discussion
A. Transport of the animals
Between August 3, 1997, and August 6, 1997, Respondent transported three elephants and eight llamas from Pahrump, Nevada, to Albuquerque, New Mexico. The animals were transported in conditions which did not comply with the Standards.
1. Ventilation.
Section 3.138(a) of the Standards requires that:
(a) The animal cargo space of primary conveyances used in transporting live animals shall be designed and constructed to protect the health, and ensure the safety and comfort of the live animals contained therein at all times.
*14 9 C.F.R. § 3.138(a).
Respondent transported animals in a trailer which was not properly constructed for the purpose[] of transporting animals. The trailer had only two small ventilation panels on the front wall. According to the police officers who discovered the animals at the Wyndham Hotel, heat was escaping through the panels, which did not permit sufficient fresh air to enter the trailer.
Ben Davenport admitted that there was insufficient ventilation in the trailer when the doors were closed (Tr. 608). He claims, however, that the trailer doors were left open whenever they were in transit. If so, the trailer was not constructed so as to ensure the safety of the animals when the doors were open. Although the elephants were tethered and there was one restraining bar, the elephants could still reach their heads out through the open doors. Therefore, although opening the doors would improve the comfort of the animals, it would also reduce their safety. Consequently, traveling with the doors open did not bring the trailer into compliance with the Standards.
Respondent asserts that the trailer was “approved” by USDA and, therefore, cannot be deemed to violate the Standards. The trailer was inspected on July 24, 1997, by APHIS inspector, Gregory Wallen, while Respondent was exhibiting the animals in Las Vegas, Nevada [(RX 1)]. Mr. Wallen did not cite any violations with respect to the transport facilities. This omission was an error on the part of Mr. Wallen. Mr. Wallen's error, however, does not absolve Respondent of his duty to comply with the [Animal Welfare] Act [and] the Regulations and Standards.
Respondent's assertion that he should be able to rely on Mr. Wallen's advice that the [trailer] was appropriate to transport the animals is without merit. First, the evidence indicates that Mr. Wallen expressed concern about the ventilation, and in fact told Chewy Davenport that the trailer did not have adequate ventilation with closed doors. Chewy Davenport assured him that the animals would never be in the trailer with the doors closed. (Tr. [181-83].) Based upon this information, Mr. Wallen decided not to cite the trailer as noncompliant. Due to Mr. Wallen's concerns, however, Respondent should not be surprised that the trailer was found to provide insufficient ventilation when the animals were later discovered in the trailer with the doors closed.
In addition, it is the Respondent's duty to be in compliance with the [Animal Welfare] Act, and the Regulations and Standards at all times. It is not the duty of APHIS inspectors to instruct licensees as to the details of meeting those requirements. Inspectors do not certify or otherwise approve facilities, and conveyances are not required to be inspected or approved before they can be used. While Respondent escaped a citation for noncompliance on July 24, 1997, he cannot use the mistake of one inspector to avoid being held accountable for violations which he and his employees should have known would cause his animals to suffer extreme discomfort.
*15 Respondent further argues that he should not be held liable because the Standards fail to provide specific requirements for the amount of ventilation necessary. Respondent's [trailer] had virtually no ventilation at all. [The number and size of the ventilation panels] should have made it obvious to Respondent that . . . [the trailer was not constructed in a manner so that the animals could be provided with] sufficient fresh air and [kept cool].
2. Care in transit.
Section 3.140[(a)] of the Standards provides that:
(a) During surface transportation, it shall be the responsibility of the driver or other employee to visually observe the live animals as frequently as circumstances may dictate, but not less than once every 4 hours, to assure that they are receiving sufficient air for normal breathing, their ambient temperatures are within the prescribed limits, all other applicable standards are being complied with and to determine whether any of the live animals are in obvious physical distress and to provide any needed veterinary care as soon as possible. . . . The carrier shall provide any needed veterinary care as soon as possible. No animal in obvious physical distress shall be transported in commerce.
9 C.F.R. § 3.140(a).
Heather was transported in obvious physical distress. She suffered from profuse diarrhea while in Pahrump, Nevada, and although she may have shown some improvement after a change in diet, she still was experiencing loose stools when Ben Davenport loaded her on the trailer and left for Dillon, Colorado [(Tr. 53- 58).] In addition, Ben Davenport did not provide veterinary care as soon as possible after discovering that her condition had worsened [(Tr. 639-40).] Instead, he continued to transport her while [she was] in obvious physical distress, in violation of the Standards. He claims that his actions were based on instructions from Dr. Tate [(Tr. 640-42; CX 124 at 1).] However, the only person to whom he spoke was his father [(Tr. 615)]. Dr. Tate testified that he was not informed that Heather's condition had deteriorated and that he did not give instructions to return her to Texas [(Tr. 135-36)].
Ben Davenport further claims that he did not know Heather was in serious physical distress. His lack of knowledge, however, does not excuse the violation. If he had been in direct contact with Dr. Tate, or if he had been properly trained in elephant care, he would have realized the seriousness of the condition.
3. Space.
Section 3.12[8 of the Standards] provides that:
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. . . .
9 C.F.R. § 3.12[8].
Respondent transported eight llamas in the gooseneck portion of the trailer which measured approximately 8 feet by 8 feet (CX 75 at 2). This amount of space for eight large animals cannot be said to be sufficient to allow for normal postural and social adjustments (CX 75 at 2). In addition, the space was only about 6 feet high. Since llamas are almost 6 feet tall, an enclosure of that height was insufficient for the animals to stretch and move comfortably. (Tr. 257-58.)
*16 Respondent again argues that the trailer was approved and that the Regulations regarding space are not specific enough. Ben Davenport testified, however, that Mr. Wallen stated that there was not enough room for all eight llamas in the gooseneck (Tr. 613). Accordingly, Respondent cannot claim that the trailer was approved to transport eight llamas. Furthermore, although it might be possible, and even desirable, to develop more specific guidelines with respect to space requirements, the Standards are not so broad as to make them unenforceable. Respondent was still subject to the Standards as written, and he failed to comply with those requirements.
4. Sanitization.
Section 3.137(d) of the [S]tandards relating to the transport of live animals requires that:
(d) Primary enclosures used to transport live animals as provided in this section shall have solid bottoms to prevent leakage in shipment and still be cleaned and sanitized in a manner prescribed in § 3.131 of the standards, if previously used. Such primary enclosures shall contain clean litter of a suitable absorbant material, which is safe and nontoxic to the live animals contained therein, in sufficient quantity to absorb and cover excreta, unless the animals are on wire or other nonsolid floors.
[9 C.F.R. § 3.137(d).]
Witnesses testified that when they observed the trailer at the hotel, it was leaking feces and urine (Tr. 80, 330). Inside the trailer, the floor was covered with hay and feces and there was fecal material piled up around Heather (Tr. 306-07, 330). There was no testimony with respect to how often Ben Davenport cleaned the trailer during the trip; however, since feces was leaking from the trailer and [the excreta] were not completely covered with litter, the conditions were in violation of the Standards, regardless of when the trailer was last cleaned.
B. Handling
Section 2.131(a)(1) of the Regulations requires that:
(a)(1) Handling of all animals shall be done as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort.
9 C.F.R. § 2.131(a)(1).
On August 6, 1997, Respondent failed to handle eight llamas and two elephants in a manner which would not cause overheating, physical harm, or unnecessary discomfort. The animals were confined in conditions of extreme heat, in a trailer with virtually no ventilation. Respondent argues that he did not commit a violation because elephants are accustomed to extreme heat. Although elephants are warm weather animals, the conditions in which they were confined on August 6[, 1997,] are not found in their natural habitat. Elephants are also more prone to overheating than some animals, because they have such a large body mass in comparison to skin available to dissipate heat. (Tr. 260.) Furthermore, llamas are cold weather animals and are, therefore, not accustomed to high temperatures under any circumstances [(Tr. 386, 610)].
*17 In addition to the heat, the lack of ventilation, combined with the buildup of feces and urine, likely made breathing difficult, further causing discomfort and physical harm (Tr. 261-62).
The animals were also handled in a manner which was likely to cause trauma and behavioral stress. The evidence indicates that Heather tossed and turned, and was probably in a great deal of pain before dying (Tr. 347-49). Elephants have emotions and are sensitive to suffering and death. Therefore, being confined in the trailer with Heather, while she was dying and after she was dead, must have been traumatic for both of the other elephants. (Tr. 259-60, 346-4[9].)
C. Veterinary Care
Section 2.40(b)[(1)-(4)] of the Regulations requires that:
(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;
F(3) Daily observation of all animals to assess their health and well-being; Provided, however, That daily observation of animals may be accomplished by someone other than the attending veterinarian; and Provided, further, That a mechanism of direct and frequent communication is required so that timely and accurate information on problems of animal health, behavior, and well-being is conveyed to the attending veterinarian;
(4) Adequate guidance to personnel involved in the care and use of animals regarding handling, immobilization, anesthesia, analgesia, tranquilization, and euthanasia . . . .
9 C.F.R. § 2.40(b)(1)-(4).
1. Urgent care.
The African elephant, Heather, first became ill in Pahrump, Nevada, sometime before August 3, 1997, and she remained ill until her death on August 6, 1997. There was some indication that she showed improvement after a change of diet while still in Pahrump. However, Ben Davenport stated that she still had loose stools when she was loaded for transport on August 3, 1997 (CX 124 at 3).
Respondent failed to employ a mechanism of direct and frequent communication with the attending veterinarian as required by 9 C.F.R. § 2.40(b)(3). Dr. Tate testified that on August 3, 1997, Respondent informed him that Heather had diarrhea and that she had been eating alfalfa [(Tr. 141-42)]. At that time, Dr. Tate recommended a change in diet and told Respondent to notify him if Heather's condition did not improve or worsened [(Tr. 142)]. Dr. Tate testified that Respondent did not contact him again until after Heather died [(Tr. 144)]. At no time did anyone attending the animals speak directly with Dr. Tate.
[An expert, Dr. Steven B. Snyder, head veterinarian, Albuquerque Biological Park,] testified that diarrhea is a serious condition in elephants, which requires veterinary attention [(Tr. 439, 468)]. Yet at no point was veterinary care sought for Heather, despite the fact that she suffered from diarrhea for 3 to 5 days prior to her death. As such, Respondent failed to use appropriate methods to prevent, control, diagnose, and treat diseases and injuries, and failed to provide emergency care. Respondent claims that Heather was being brought back to Texas at the instruction of his attending veterinarian, Dr. Tate; however, Dr. Tate denies giving these instructions [(Tr. 135)]. In fact, Dr. Tate denies that Respondent ever informed him that Heather's condition had worsened [(Tr. 143-44)].
*18 Respondent argues that he did not violate section 2.40 [of the Regulations (9 C.F.R. § 2.40)] because he had an attending veterinarian and a written program of veterinary care; but it is not enough to have a program of care, if actual care is not provided.
Respondent further argues that the Regulations should provide more specific guidelines for what veterinary care is required. [Footnote 1 omitted.] Respondent also asserts that the veterinary care section, among others, is unconstitutionally void for vagueness. [Specifically, Respondent contends that he was not given notice of the standard of conduct to which he was held accountable “in terms of veterinary care, adequate food, shelter, housing, diet, nutritional maintenance, etc.” (Respondent's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 43-44; also see Respondent's Appeal Petition and Brief at 44-45, which reiterates exactly the same argument).
Respondent is mistaken. A regulation is unconstitutionally vague if it is so unclear that ordinary people cannot understand what conduct is prohibited or required, or, if it is so unclear that it encourages arbitrary and discriminatory enforcement.2 A review of each of the Regulations and Standards, which Respondent is alleged to have violated (Complaint), reveals none which is unconstitutionally vague. The difficulty arises in defining certain regulatory terms, such as “adequate veterinary care,” and applying them to the facts of a given situation. However, regulations are not unconstitutionally vague merely because they are ambiguous or difficulty is found in determining whether marginal cases fall within their language. 3] The Regulations cannot, however, possibly anticipate every situation that might arise with every animal and specify what should be done. . . .
2. Routine care.
The evidence indicates that Respondent had not provided, possibly for years, proper skin and foot care to the elephants [(Tr. 350, 357-58, 360, 369)]. Both African elephants had deep crevices and other skin and foot afflictions. Donna's skin [and Heather's skin both were] thickened to the point of being almost an “exoskeleton” [(Heather), or almost looking like a “dinosaur” (Donna) (Tr. 367, 376)]. The Asian elephant, Irene, did not have skin problems as serious as the African elephants; however, she did have flaky skin on her face, indicating some lack of skin care [(Tr 375-77)]. When an elephant's skin becomes thickened, it restricts motion and prevents the adequate dissipation of heat [(Tr. 367, 380)]. When stones and debris become lodged in the crevices of an elephant's feet, infections and lameness may result [(Tr. 364-65)]. Respondent, therefore, failed to use appropriate methods to prevent diseases and injuries, in violation of section 2.40(b)(2) [of the Regulations (9 C.F.R. § 2.40(b)(2)).]
Ben Davenport did not have all of the proper skin care tools with him in Albuquerque [(Tr. 362)]. It is not clear whether the circus even owned the appropriate tools. When Ben Davenport attempted to trim Donna's feet in Albuquerque, he showed that he was unskilled or unfamiliar with the proper way in which to do so [(Tr. 362)]. He cut too deeply into her foot, leaving it red and tender [(Tr. 363)]. Respondent's failure to have appropriate equipment and personnel available constitutes a violation of section 2.40[(b)](1) [of the Regulations (9 C.F.R. § 2.40(b)(1))].
*19 Respondent maintains that the skin of each elephant was in the same condition when they were acquired, and that the condition of each was normal. The only “expert” testimony presented by Respondent was from Steven Kendall, who is principally a lobbyist with no advanced training in animal care (Tr. 66 [0-62]). Mr. Kendall's opinion that the elephant's skin was normal [(Tr. 677)] is, therefore, not entitled to as much weight as the opinions of the animal care specialists who testified that the skin was in poor condition and had been neglected for an extended period of time. Furthermore, Mr. Kendall agreed that insufficient foot care had been provided (Tr. 674-75).
Respondent additionally argues that he cannot be held responsible for the violation because Mr. Wallen did not cite any skin or foot care violations in the previous inspection, and veterinarians who issued health certificates for the animals never reported any skin care problems. Again, Mr. Wallen's failure to cite violations does not excuse Respondent from compliance with the Regulations. The health certificates submitted by Respondent as RX 5, 6, and 7, indicate only that the animals were tested for tuberculosis. Veterinarians who issue health certificates typically test for communicable diseases and do not conduct extensive physical exams or attest to the general health of the animals (Tr. 569-72). Although I am troubled by the fact that no one previously reported these problems respecting Respondent's animals, such omissions do not excuse Respondent from his responsibility to be in compliance with the Regulations.
D. Adequate Food
Section 3.129[(a) of the Standards] provides, with respect to feeding animals:
(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.
9 C.F.R. § 3.129[(a)].
While in Nevada, the elephants were fed rabbit pellets and alfalfa, which Ben Davenport admitted was not an appropriate diet for elephants (Tr. [65, 142,] 640). There was testimony that Chewy Davenport fed the elephants alfalfa because there was no grass hay available in Nevada (Tr. 64). It is Respondent's responsibility, however, to ensure that appropriate food is available for his animals at all times.
The evidence also indicates that Donna was undernourished at the time she was discovered in Albuquerque. On August 8, 1997, she weighed 2,240 pounds. The average weight for an African elephant her age is 3,500 to 4,000 pounds. ([Tr. 456;] CX 72 at 2.) Some of her low weight can be attributed to weight loss from the diarrhea she was suffering, but it seems unlikely that more than 1,000 pounds were lost due to diarrhea. Also blood work on both Irene and Donna indicated anemia and poor nutrition (Tr. 456-61; CX 72, 73). Ben Davenport failed to give the animals nutritional supplements even after they were provided by the Albuquerque Biological Park. He claimed the elephants simply would not take them; however, the park personnel had no such difficulty when they took over the feeding [(CX 73 at 2)].
*20 Respondent stresses that Dr. Thilstead made findings in his necropsy report that Heather had water in her stomach [(CX 51 at 1)] and was “in good nutritional condition (adequate body fat).” (CX 51 [at 1].) Dr. Thilstead explained in his testimony, however, that the statement about the nutritional condition meant only that the animal did not die of starvation [(Tr. 408)]. He also explained that it was difficult to clearly evaluate the body condition because of post-mortem decomposition (Tr. 408). Dr. Thilstead further testified that the water in Heather's stomach indicated that she had ingested water within 12 hours prior to her death, whereas lack of food indicated that she had not eaten anything in the prior 8 to 12 hours. (Tr. 415, 426.)
Respondent again claims that the Regulations should provide specific nutritional standards. The specific dietary needs of each animal cannot be anticipated by the Regulations. Contrary to Respondent's assertions that anyone ought to be able to buy an elephant and expect the Regulations to provide all the necessary instructions for care, the Regulations are not an instruction manual, and in fact require that licensees [maintain an acceptable level] of animal husbandry (Tr. 545-4[9]). Specifically, section 3.132 of the [Standards] requires that: “A sufficient number of adequately trained employees shall be utilized to maintain the professionally acceptable level of husbandry practices set forth in this subpart. Such practices shall be under a supervisor who has a background in animal care.” [(9 C.F.R. § 3.132.)] As such, Respondent was required to [maintain an acceptable level of husbandry practices as set forth in sections 3.125-.142 of the Standards (9 C.F.R. §§ 3.125- .142)] without step-by-step instructions from USDA.
E. Records
[Section 10 of the Animal Welfare Act provides that:
Dealers and exhibitors shall make and retain for such reasonable period of time as the Secretary may prescribe, such records with respect to the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe. . . . Such records shall be made available at all reasonable times for inspection and copying by the Secretary.
7 U.S.C. § 2140.]
Section 2.75(b) of the [R]egulations provides that:
[(b)](1) Every . . . 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;
*21 (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.
(2) Record of Animals on Hand (other than dogs and cats) (APHIS form 7019/VS Form 18- 19) and Record of Acquisition, Disposition, or Transport of Animals (other than dogs and cats) (APHIS Form 7020/VS Form 18-20) are forms which may be used by dealers and exhibitors to keep and maintain the information required by paragraph (b)(1) of this section concerning animals other than dogs and cats except as provided in § 2.79.
(3) One copy of the record containing the information required by paragraph (b)(1) of this section shall accompany each shipment of any animal(s) other than a dog or cat purchased or otherwise acquired by a dealer or exhibitor. One copy of the record containing the information required by paragraph (b)(1) of this section shall accompany each shipment of any animal other than a dog or cat sold or otherwise disposed of by a dealer or exhibitor; Provided, however, That information which indicates the source and date of acquisition of any animal other than a dog or cat need not appear on the copy of the record accompanying the shipment. The dealer or exhibitor shall retain one copy of the record containing the information required by paragraph (b)(1) of this section.
9 C.F.R. § 2.75(b).
Respondent failed to have records of . . . identification of animals [owned and transported] available for inspection, in Albuquerque, on August 7, 8, and 9, 1997.
Respondent argues that he did not violate recordkeeping requirements because he had the necessary records in his possession and that the Regulations do not clearly mandate that records must accompany animals when they are transported between exhibitions. [However, 7 U.S.C. § 2140 requires that exhibitors make their records identifying animals available for inspection at all reasonable times. It is not unreasonable to expect that the records be with the animals as they are transported, or the regulation would be ineffective for its purpose.]
. . . Furthermore, Respondent was cited for violating [9 C.F.R. § 2.75(b)(1)] during Mr. Wallen's inspection [on July 24, 1997,] in Las Vegas (RX 1); and, therefore, Respondent was on notice of the agency's interpretation. [While it is true that inspector Wallen gave Respondent until August 15, 1997, to correct this deficiency (RX 1 at 2), it is well settled that a correction date does not exculpate Respondent from the violation. This policy was articulated in In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 142 (1997), as follows:
This Department's policy is that the subsequent correction of a condition not in compliance with the Act or the regulations or standards issued under the Act has no bearing on the fact that a violation has occurred. In re Pet Paradise, Inc., 51 Agric. Dec. 1047 (1992), aff'd sub nom. Wilson v. USDA, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)). Each dealer, exhibitor, operator of an auction sale, and intermediate handler must always be in compliance in all respects with the regulations in 9 C.F.R. Part 2 and the standards in 9 C.F.R. Part 3. (9 C.F.R. § 2.100(a).) This duty exists regardless of a “correction date” suggested by an APHIS inspector who notes the existence of a violation. While corrections are to be encouraged and may be taken into account when determining the sanction to be imposed, even the immediate correction of a violation, as occurred in the instant case on a number of occasions, does not operate to eliminate the fact that a violation occurred and does not provide a basis for the dismissal of the alleged violation.
*22 The Department's policy regarding corrections of violations of the Act and the regulations and standards issued under the Act was clearly articulated in In re Pet Paradise, Inc., supra, which was issued September 16, 1992.]
F. Willfulness
Respondent repeatedly maintains that Ben Davenport loved the animals and would never intentionally harm them; however, the intent to cause harm is not necessary for an act to be willful. A willful act is one which is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. See In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 13 [8-39] (1996); In re Craig Lesser, 52 Agric. Dec. 155, 167 (1993), aff'd, 34 F.3d 1301 (7th Cir. 1994); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1067-70 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)). All of the acts resulting in violations were done intentionally or with careless disregard of [statutory requirements], and accordingly the violations resulting [from these acts] were willful.
G. Principle-Agent Relationship
Respondent further argues that even if violations did occur, he cannot be held responsible because they were not committed by him, but by his sons. Section [9] of the [Animal Welfare] Act provides that:
When construing or enforcing the provisions of this chapter, the act, omission, or failure of any person acting for or employed by . . . an exhibitor . . . within the scope of his employment or office, shall be deemed the act, omission, or failure of such . . . exhibitor, . . . as well as of such person.
7 U.S.C. § 2139; see also In re Hank Post, 47 Agric. Dec. 542, 547 (1988); In re Gentle Jungle, Inc., 45 Agric. Dec. 135, 147 (1986);In re Marlin U. Zartman, 44 Agric. Dec. 174, 185 n.3 (1985). Nevertheless, Respondent argues that his sons were not acting within the scope of their employment when the violations occurred, because they were not authorized to violate the [Animal Welfare] Act and the Regulations and Standards. Chewy and Ben Davenport are Respondent's employees and were transporting and caring for the animals on behalf of Respondent with his authorization. Accordingly, any violations occurring in the course of the transport and care were committed in the scope of their employment. Moreover, Respondent's direct responsibility is established by his instruction to Ben Davenport not to obtain veterinary care for Heather and by Respondent's ownership of the trailer at issue.
H. Sanctions
Complainant has recommended the issuance of a cease and desist order, a civil penalty in the amount of $200,000, and the permanent revocation of Respondent's license.
[Section 19(b) of the Animal Welfare] Act provides that sanctions shall be imposed as follows:
Any . . . exhibitor . . . that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. . . . 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.
*23 7 U.S.C. § 2149[(b)]. The Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to 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.
There was very little evidence admitted with respect to the size of Respondent's business. The January 1997 license renewal application indicates that Respondent exhibits 20 animals (CX 2). In addition, there was testimony that the elephants at issue are worth $80,000 to $100,000 each (Tr. 616). As such, the size of Respondent's business is sufficiently large that a $200,000 civil penalty [is not,] for that reason, excessive.
With the exception of the availability of records, the violations that Respondent committed were severe and directly affected the health and well-being of the animals. In the case of Heather, the failure to obtain veterinary care may have resulted in her death. Furthermore, the violations were not isolated occurrences, but were part of a long-term failure to provide adequate care.
Respondent has not shown good faith. Ben Davenport attempted to prevent discovery of the animals, lying to police about the number and type of animals in the trailer. He was resistant towards the attempt by park personnel to teach him proper methods of animal care. He refused to give nutritional supplements to the animals that were provided by the park personnel. Respondent . . . has refused to accept any responsibility for the care of his animals, attempting instead to place blame for the violations on animal rights activists, APHIS inspectors, veterinarians, and his sons. I did not find [Respondent's] son, Ben Davenport, to be a credible witness, and neither Respondent nor his other son, “Chewy,” nor any of his other employees [gave] testimony [which] explain[s] or mitigate[s] Respondent's violations.
Respondent also has a history of violations. Orders were issued against Respondent in two prior cases. . . . In re John D. Davenport, 55 Agric. Dec. 426 (1996); . . . In re John D. T. Davenport, 40 Agric. Dec. 209 (1980)
Based on the foregoing, I have concluded that the maximum penalty of $2,500 is appropriate for each of the violations except for the recordkeeping violations, for which $500 is appropriate for each of the three inspections at which records were not available. Each animal and each day during which an offense occurs shall be deemed a separate violation; however, offenses which occurred for an indefinite period (i.e., foot care, skin care, and nutrition), will be treated as a single violation for each animal due to the impossibility of determining the exact number of days involved. Based on such calculations, I have determined that Respondent committed 103 violations.4 The [civil penalty], therefore, could amount to $251,500. Accordingly, Complainant's recommended civil penalty of $200,000 is appropriate. Although the [civil penalty] is the highest to be [assessed] in an animal welfare case to date, it is consistent with previous sanctions, as well as with Departmental policy.5
*24 Furthermore, the permanent revocation of Respondent's license and the issuance of a cease and desist order are appropriate and shall be ordered.
ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER
The burden of proof in disciplinary proceedings under the Animal Welfare Act is preponderance of the evidence, which is all that is required for the violations alleged in the Complaint.6 Quantitatively, Complainant need only show a scintilla more than 50 percent of the evidence to prevail under the preponderance standard. Put another way, Complainant need only show that Complainant's version of the facts is more likely than not correct. I find that Complainant has met the burden of proof by much more than a preponderance of the evidence.
Concerning whether Respondent's actions were willful, 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.7Respondent argues that “this is not a case about intentional acts of animal abuse or maltreatment” (Respondent's Appeal Petition and Brief at 35), but willfulness includes not only intent to do a prohibited act but also careless disregard of statutory requirements. The United States Court of Appeals for the Eighth Circuit expressed the same view of willfulness, citing Cox, when it issued the opinion in another Animal Welfare Act case deciding similar issues, Toney v. Glickman, 101 F.3d 1236, 1241 (8th Cir. 1996): “‘Willfulness . . . includes not only intent to do a prohibited act but also careless disregard of statutory requirements.’ Cox v. United States Dept. of Agriculture, 925 F.2d 1102, 1105 (8th Cir.), cert. denied, 502 U.S. 860, 112 S.Ct. 178, 116 L.Ed.2d 141 (1991).” Under any legal interpretation of “willful,” therefore, I find that the Chief ALJ is correct that Respondent's violations were willful.
Respondent's Appeal
I have carefully examined Respondent's 49-page appeal (Respondent's Appeal Petition and Brief). I agree with Complainant that Respondent's appeal is predominantly a repetition of Respondent's Proposed Findings of Fact, Conclusions of Law, and Brief in Support Thereof, in that Respondent requests the addition to the Decision and Order of 141 of the 145 proposed findings of fact, which are set forth in Respondent's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof (Complainant's Response to Appeal at 3-4). However, I agree with Complainant that Respondent's resubmission of the same proposed findings, without assignation of error by the Chief ALJ, either for relevancy or for evidentiary support, ignores the Chief ALJ's holding, as follows:
All proposed findings, conclusions and arguments have been considered. To the extent indicated they have been adopted; otherwise they have been rejected as not relevant or not supported by the evidence.
Initial Decision and Order at 1.
*25 Respondent does list nine issues for appeal,8 but, Respondent's Appeal Petition and Brief is not organized around these nine issues. Rather, Complainant is correct that Respondent's arguments follow the numbering of the Findings of Fact in the Initial Decision and Order. Since I agree with Complainant both on the format and on the substance of Respondent's Appeal Petition and Brief, I follow Complainant's responses to Respondent's arguments. (Complainant's Response to Appeal at 4.)
1. Respondent does not take issue with Finding of Fact 1, but asks that Respondent's Proposed Findings of Fact 3 through 7 be added (Respondent's Appeal Petition and Brief at 9). Respondent makes no supportive arguments. Complainant correctly argues that these requested additions are either redundant or unnecessary (Complainant's Response to Appeal at 4). I reject Respondent's request.
2. Respondent objects to the statement in Finding of Fact 2 that “Ben Davenport does not have any formal training in animal care” (Respondent's Appeal Petition and Brief at 9). Respondent contends that Ben Davenport has had considerable on the job training. However, the Chief ALJ's finding that Ben Davenport has had no formal training in animal care is amply supported by the record, and I find no basis for Respondent's objection to Finding of Fact 2. Moreover, Complainant is correct that Respondent's proposed findings 8 through 18 go beyond Ben Davenport's training levels, and address substantive issues claiming proper feeding and adequate care of the elephants. I agree with Complainant that these issues are addressed in Findings of Fact 19 and 20, which are contrary to Respondent's proposed findings (Complainant's Response to Appeal at 5).
3. Respondent does not object to Finding of Fact 3 (Respondent's Appeal Petition and Brief at 10-11).
4. Respondent argues that APHIS inspector Gregory Wallen, among other USDA inspectors, approved Respondent's equipment, care, and handling of the animals. Further, Respondent argues that Respondent was in substantial compliance with the Animal Welfare Act, which is supported by Respondent's proposed findings, which were unfairly excluded by the Chief ALJ. (Respondent's Appeal Petition and Brief at 11-12.) I infer that Respondent is making two arguments here: 1) that a licensee should be able to rely on a government inspector's compliance findings or advice to insulate the licensee from being charged with subsequent violations; and 2) that APHIS inspector Gregory Wallen actually found Respondent's operations to be in compliance on July 24, 1997. Respondent is wrong on both counts.
First, Respondent posits the question: “[d]oes not the exhibitor have the right to rely on the representation made by the [federal government] expert”? (Respondent's Appeal Petition and Brief at 12). The answer is that Respondent relies on the representations of federal employees at Respondent's peril because it is well-settled that individuals are bound by federal statutes and regulations, irrespective of the advice, findings, or compliance determinations of federal employees. See FCIC v. Merrill, 332 U.S. 380, 382-86 (1947); In re C.C. Baird, 57 Agric. Dec. ___, slip op. at 54-55 (Mar. 20, 1998); In re Andersen Dairy, Inc., 49 Agric. Dec. 1, 20 (1990);In re Moore Marketing International, Inc., 47 Agric. Dec. 1472, 1477 (1988).
*26 I infer that Respondent's argument is actually based upon equitable estoppel. However, this legal concept is rarely applicable against the federal government, as was described in some detail in two recent cases, as follows:
The doctrine of equitable estoppel is not, in itself, either a claim or a defense; rather, it is a means of precluding a litigant from asserting an otherwise available claim or defense against a party who has detrimentally relied on that litigant's conduct. Kennedy v. United States, 965 F.2d 413, 417 (7th Cir. 1992); Olsen v. United States, 952 F.2d 236, 241 (8th Cir. 1991); ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988); FDIC v. Roldan Fonseca, 795 F.2d 1102, 1108 (1st Cir. 1986). One key principle of equitable estoppel is that the party claiming the theory must demonstrate reliance on the other party's conduct in such a manner as to change his position for the worse. Heckler v. Community Health Services, 467 U.S. 51, 59 (1984); Carrillo v. United States, 5 F.3d 1302, 1306 (9th Cir. 1993); Kennedy v. United States, supra, 965 F.2d at 418.
. . . .
Further, . . . it is well settled that the government may not be estopped on the same terms as any other litigant. Heckler v. Community Health Services, supra, 467 U.S. at 60; United States Immigration & Naturalization Serv. v. Hibi, 414 U.S. 5, 8 (1973)(per curiam); FCIC v. Merrill, 332 U.S. 380, 383 (1947). It is only with great reluctance that the doctrine of estoppel is applied against the government, and its application against the government is especially disfavored when it thwarts enforcement of public laws. Muck v. United States, 3 F.3d 1378, 1382 (10th Cir. 1993); Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984); United States v. Browning, 630 F.2d 694, 702 (10th Cir. 1980), cert. denied, 451 U.S. 988 (1981). Equitable estoppel does not generally apply to the government acting in its sovereign capacity, as it was doing in this case, United States v. Killough, 848 F.2d 1523, 1526 (11th Cir. 1988); Johnson v. Williford, 682 F.2d 868, 871 (9th Cir. 1982); In re All-Airtransport, Inc., 50 Agric. Dec. 412, 416 (1991); In re Norwich Beef Co., 38 Agric. Dec. 380, 396-98 (1979), aff'd, No. H-79-210 (D. Conn. Feb. 6, 1981), appeal dismissed, No. 81-6080 (2d Cir. Jan. 22, 1982); In re M. & H. Produce Co., 34 Agric. Dec. 700, 760-61 (1975), aff'd, 549 F.2d 830 (D.C. Cir.) (unpublished), cert. denied, 434 U.S. 920 (1977), and estoppel is only available if the government's wrongful conduct threatens to work a serious injustice, if the public's interest would not be unduly damaged by the imposition of estoppel, and, generally, only if there is proof of affirmative misconduct by the government. City of New York v. Shalala, 34 F.3d 1161, 1168 (2d Cir. 1994); United States v. Vanhorn, 20 F.3d 104, 112 n.19 (4th Cir. 1994); United States v. Guy, 978 F.2d 934, 937 (6th Cir. 1992); In re All-Airtransport, Inc., supra, 50 Agric. Dec. at 418, citing Gestuvo v. District Director of INS, 337 F. Supp. 1093, 1099 (C.D. Cal. 1971). Respondents bear a heavy burden when asserting estoppel against the government and they have fallen far short of demonstrating that the traditional elements of estoppel are present in this case.
*27 In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 129-30 (1996). See also In re Dean Byard, 56 Agric. Dec. 1543, 1560-61 (1997). Moreover, an examination of the record in the case, sub judice, reveals that, if Respondent had made the effort to prove estoppel, Respondent would also fall far short of demonstrating that the traditional elements of estoppel are present.
Second, Respondent is mistaken that this record supports Respondent's contention that APHIS inspector Gregory Wallen's evidence helps Respondent. As Complainant correctly argues (Complainant's Response to Appeal at 6), Respondent ignores the Chief ALJ's discussion of this issue:
Respondent's assertion that he should be able to rely on Mr. Wallen's advice that the [trailer] was appropriate to transport the animals is without merit. First, the evidence indicates that Mr. Wallen expressed concern about the ventilation, and in fact told Chewy Davenport that the trailer did not have adequate ventilation with closed doors. Chewy Davenport assured him that the animals would never be in the trailer with the doors closed. (Tr. [181-83].) Based upon this information, Mr. Wallen decided not to cite the trailer as noncompliant. Due to Mr. Wallen's concerns, however, Respondent should not be surprised that the trailer was found to provide insufficient ventilation when the animals were later discovered in the trailer with the doors closed.
Initial Decision and Order at 12.
Respondent contends in his post-hearing brief that in Albuquerque the doors to the vehicle were only closed for a few minutes (Respondent's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 33). Respondent reiterates this statement in Respondent's appeal (Respondent's Appeal Petition and Brief at 35). The record shows this statement to be false.
Ben Davenport admitted to Kent Newton, Assistant Director of the Albuquerque Biological Park, that the vehicle arrived in Albuquerque at about 2:00 p.m. on August 6, 1997, and that the doors were closed and remained closed until the city police ordered them opened at about 7:00 p.m. (Tr. 354-55; CX 115 at 1, CX 116 at 1). Albuquerque police officers John Corvino (Tr. 114- 15; CX 115 at 1), John Guilmette (Tr. 84; CX 116 at 1), and Duffy Ryan (Tr. 124; CX 117 at 3) all provided evidence of tremendous heat inside the trailer (Complainant's Response to Appeal at 7).
Therefore, I agree with Complainant that APHIS inspector Wallen's mistake was in relying on Respondent's misrepresentations that the doors would not be closed, rather than a mistake by APHIS inspector Wallen in not citing Respondent for a non-compliant trailer. Further, I agree with Complainant that Respondent's Proposed Findings of Fact 90 through 125 concerning Gregory Wallen were properly rejected as irrelevant by the Chief ALJ (Complainant's Response to Appeal at 7-8).
I agree with Complainant that the rest of Respondent's treatment of Finding of Fact 4 is to have a vehicle for arguing that Respondent is not to blame for the elephants' long-standing problems of skin care and foot care and transporting the llamas in overcrowded conditions (Complainant's Response to Appeal at 8). I agree with Complainant that Respondent's Proposed Finding of Fact 89, having to do with how many people view elephants in the circus, is irrelevant to Respondent's responsibility for the condition of the animals.
*28 Respondent's request to supplement Finding of Fact 4 with Respondent's Proposed Findings of Fact 126 through 137 is an attempt to establish that state veterinarians who test Respondent's animals for particular infectious diseases before allowing admittance to that particular state have also found that the animals have no maladies. This argument was properly rejected by the Chief ALJ, as follows:
The health certificates submitted by Respondent as RX 5, 6, and 7, indicate only that the animals were tested for tuberculosis. Veterinarians who issue health certificates typically test for communicable diseases and do not conduct extensive physical exams, or attest to the general health of the animals. (Tr. 569-72).
Initial Decision and Order at 20.
Respondent next requests to add Respondent's Proposed Findings of Fact 138 through 140, to establish that Respondent had a written program of veterinary care as required by 9 C.F.R. § 2.40. However, I agree with the Chief ALJ that Respondent did not provide proper veterinary care, which the Chief ALJ concluded is crucial to compliance with 9 C.F.R. § 2.40, as follows:
Respondent argues that he did not violate § 2.40 because he had an attending veterinarian and a written program of veterinary care; but it is not enough to have a program of care, if actual care is not provided.
Initial Decision and Order at 18. Therefore, I agree with Complainant that Respondent's Proposed Findings of Fact 138 through 140 were properly rejected as irrelevant, and will not be added to Finding of Fact 4.
Finally, Respondent seeks to supplement Finding of Fact 4 with Respondent's Proposed Findings of Fact 73 through 80, advancing the suitability of the trailer for the transport of animals, primarily as to ventilation, but also as to adequate space. Concerning ventilation, Respondent's proposed findings were properly rejected because the evidence establishes that the trailer was not adequately ventilated and the animals were kept on the trailer with the doors closed for a substantial period of time. On adequacy of space for the animals being transported at the time of the violations, it is not true that “Ben Davenport was never informed by anyone from the United States Department of Agriculture or by any veterinarian that the space [on the trailer in question] was not sufficient for transport[ing the involved animals].” (Respondent's Appeal Petition and Brief at 17.) It is also untrue that Respondent would have made changes if told of inadequacies, because Ben Davenport was told to reduce the number of llamas aboard the trailer from eight to six, but did not do so, as follows:
Respondent transported 8 llamas in the gooseneck portion of the trailer which measured approximately 8 feet by 8 feet. (CX 75 at 2). This amount of space for eight large animals cannot be said to be sufficient to allow for normal postural and social adjustments. In addition, the space was only about 6 feet high. (CX 75 at 2). Since llamas are almost six feet tall, an enclosure of that height was insufficient for the animals to stretch and move comfortably. (Tr. 257-58).
*29 Respondent again argues that the trailer was approved and that the regulations regarding space are not specific enough. Ben Davenport testified, however, that Mr. Wallen stated that there was not enough room for all 8 llamas in the gooseneck (Tr. 613). Accordingly, Respondent cannot claim that the trailer was approved to transport 8 llamas.
Initial Decision and Order at 15.
5. Respondent objects to Finding of Fact 5 (Respondent's Appeal Petition and Brief at 18). I completely agree with and adopt Complainant's response to Respondent's appeal on Finding of Fact 5:
Respondent objects to [that] portion of finding of fact 5 that “Chewy Davenport did not have the appropriate food available for the elephants, and instead fed them alfalfa hay and rabbit pellets” on the grounds that “[i]t is not inappropriate to feed alfalfa hay and rabbit pellets unless they are fed too much.” ([Respondent's Appeal Petition and Brief at] 18). However, Ben Davenport admitted on cross-examination that “[w]hen you give an elephant alfalfa, it's very rich in their system. It tends to give them diarrhea.” (Tr. 640.) The record is clear that the elephants were fed alfalfa hay and rabbit pellets instead of, not in addition to, their regular diet (CX 124). Accordingly, Respondent's objection to this finding is without merit. It may be noted that even if the finding were modified as Respondent requests, it would still result in a conclusion that he violated the regulations.
Complainant's Response to Appeal at 9-10.
6. Respondent objects to Finding of Fact 6 because it does not include the information on Heather's condition and treatment contained in Respondent's Proposed Findings of Fact 19 through 29. Respondent requests that Findings of Fact 5 and 6 be supplemented with Respondent's Proposed Findings of Fact 19 through 29. (Respondent's Appeal Petition and Brief at 18-19.) However, Respondent neither argues the relevancy of Respondent's information nor alleges error by the Chief ALJ. I find most of the additional information irrelevant, but with respect to Respondent's request to add statements, such as Heather “appeared to be mostly recovered,” and she “was in good shape except she wasn't moving much” (Respondent's Proposed Finding of Fact 23), the Chief ALJ properly excluded these proposed findings of fact. The Chief ALJ held a very different view of the facts, as follows:
Heather was transported in obvious physical distress. She suffered from profuse diarrhea while in Pahrump, Nevada, and although she may have shown some improvement after a change in diet, she still was experiencing loose stools when Ben Davenport loaded her on the trailer and left for Dillon, Colorado. [(Tr. 53-58.)] In addition, Ben Davenport did not provide veterinary care as soon as possible after discovering that her condition had worsened. [(Tr. 639-40.)] Instead, he continued to transport her while [she was] in obvious physical distress in violation of the standards. He claims that his actions were based on instructions from Dr. Tate [(Tr. 640-42; CX 124 at 1).] However, the only person to whom he spoke was his father [(Tr. 615)]. Dr. Tate testified that he was not informed that Heather's condition had deteriorated and that he did not give instructions to return her to Texas [(Tr. 135-36)].
*30 Ben Davenport further claims that he did not know Heather was in serious physical distress. His lack of knowledge, however, does not excuse the violation. If he had been in direct contact with Dr. Tate, or if he had been properly trained in elephant care, he would have realized the seriousness of the condition.
Initial Decision and Order at 14-15. Therefore, I deny Respondent's request to add Respondent's Proposed Findings of Fact 19 through 29.
7. Respondent requests that Respondent's Proposed Findings of Fact 30 through 39 be added to Finding of Fact 7 (Respondent's Appeal Petition and Brief at 19-20). Respondent does not allege error or present any argument. Some of Respondent's proposed findings directly contravene the Chief ALJ's conclusions. For example, Respondent's veterinarian, Dr. Glen Tate, was not fully informed of Heather's condition, and Dr. Tate did not instruct Respondent to return Heather to Texas (Initial Decision and Order at 18). I deny Respondent's request to add Respondent's Proposed Findings of Fact 30 through 39 to Finding of Fact 7.
8. Respondent's request to supplement Finding of Fact 8 (Respondent's Appeal Petition and Brief at 20-21) with extraneous, irrelevant information from Respondent's Proposed Finding of Fact 40 is denied.
9. Respondent's request to supplement Finding of Fact 9 (Respondent's Appeal Petition and Brief at 21) with extraneous, irrelevant information from Respondent's Proposed Findings of Fact 41 through 46 is denied.
10. Respondent's request to supplement Finding of Fact 10 with Respondent's Proposed Findings of Fact 81 through 85 (Respondent's Appeal Petition and Brief at 21-22) is denied. The additional information neither explains the violations nor explains the evasive and false statements given police by Respondent's employees.
11 and 12. Respondent seeks to add Respondent's Proposed Findings of Fact 47 through 49 to Findings of Fact 11 and 12 (Respondent's Appeal Petition and Brief at 22-23). Complainant argues that the purpose of adding Respondent's proposed findings is to minimize the seriousness of the animals' confinement in the inadequately ventilated trailer by emphasizing the period of time the trailer was in the hotel parking lot (Complainant's Response to Appeal at 12). I would add that Respondent is attempting to establish that the temperature in the trailer was lower than estimated by Albuquerque police. As shown in my discussion in Finding of Fact 4, the trailer arrived in Albuquerque at 2:00 p.m., August 6, 1997, the doors were closed until 7:00 p.m., when opened by the city police, one of whom estimated the temperature in the trailer at 130 °> F (CX 117 at 3). The temperatures on this sunny day were up to 88 °> F and then decreased slowly until dusk (CX 4). I infer that an inadequately ventilated metal trailer containing 11 large animals on asphalt on a sunny almost 90-degree afternoon will easily achieve temperatures of 130 °> F or more. Animals in nature do not experience these conditions. Respondent's request to add Respondent's Proposed Findings of Fact 47 through 49 to Findings of Fact 11 and 12 is denied.
*31 13 and 14. Respondent does not object to Findings of Fact 13 and 14 (Respondent's Appeal Petition and Brief at 23).
15. Respondent requests supplementing Finding of Fact 15 with Respondent's Proposed Findings of Fact 50 through 57 (Respondent Appeal Petition and Brief at 23-24). I deny this request because the proposed findings are not material. Additionally, the statement that Heather was “in good nutritional condition (adequate body fat) (CX-51),” in Respondent's Proposed Finding of Fact 53 is also false. The Chief ALJ addressed this argument, as follows:
Respondent stresses that Dr. Thilstead made findings in his necropsy report that Heather had water in her stomach [(CX 51 at 1)], and was “in good nutritional condition (adequate body fat).” (CX 51 [at 1]). Dr. Thilstead explained in his testimony, however, that the statement about the nutritional condition meant only that the animal did not die of starvation [Tr. 408)]. He also explained that it was difficult to clearly evaluate the body condition because of post-mortem decomposition. (Tr. 408). Dr. Thilstead further testified that the water in Heather's stomach indicated that she had ingested water within 12 hours prior to her death, whereas lack of food indicated that she had not eaten anything in the prior 8 to 12 hours. (Tr. 415, 426).
Initial Decision and Order at 21-22.
16, 17, and 18. Respondent does not object to Findings of Fact 16 through 18 (Respondent Appeal Petition and Brief at 24).
19. Respondent seeks to supplement Finding of Fact 19 with Respondent's Proposed Findings of Fact 65, 69, and 72 (Respondent Appeal Petition and Brief at 24-25). I reject this request. Respondent's proposal that the reason for Donna's weight loss while at the Albuquerque Biological Park, later regained, was lack of contact with Ben Davenport, is unsubstantiated and immaterial. Respondent's elephants, even after factoring in variability, were undernourished. The elephants' appearance and comparable weights of normal elephants demonstrate undernourishment. Kent Newton, Assistant Director of the Albuquerque Biological Park, testified that he had 23 years of zoo experience learning how animals should look, and that Donna was not a little bit underweight, but was in trouble (Tr. 380).
20. Respondent seeks to supplement Finding of Fact 20 with Respondent's Proposed Findings of Fact 59 through 69, because Finding of Fact 20 is “incomplete” (Respondent's Appeal Petition and Brief at 25-26). Actually, Respondent's Proposed Findings of Fact 59-69 seek to exonerate Respondent on skin and foot care, going so far as to claim that Ben Davenport did a “very good job with respect to skin care on the animals.” I agree with Complainant that the record evidence, both testimony and photographs, is overwhelming that Respondent grossly neglected the elephants' skin and foot care for an extended period (Complainant's Response to Appeal at 14). Since Respondent's proposed findings seek to obscure or to ameliorate Respondent's failure to provide proper skin and foot care, I reject Respondent's offering.
*32 21. Respondent does not object to Finding of Fact 21 (Respondent's Appeal Petition and Brief at 26).
22 and 23. Respondent objects to various portions of Findings of Fact 22 and 23 (Respondent's Appeal Petition and Brief at 27-30). I have carefully examined the Chief ALJ's Findings of Fact 22 and 23, which are an accurate rendition of the results of the several inspections performed by APHIS inspector, Warren Striplin, on August 7-10, 1997. I have also carefully examined Respondent's comments after some of the findings, but there are no material arguments which I have not already addressed.
Respondent concludes the section on findings of fact by listing several additional requested “uncontroverted” findings to be added to the Findings of Fact, inter alia, the expertise of Mr. Kendall in animal care, Respondent's shows are for charities, Respondent and Respondent's employees do not mistreat animals, and Respondent was misled by non-specificity in the ventilation standards (Respondent's Appeal Petition and Brief at 30-31). These proposed findings are rejected either because they are irrelevant, or have already been correctly decided against Respondent by the Chief ALJ: Respondent's trailer had inadequate ventilation; it is irrelevant that Respondent's shows are conducted for charitable organizations; it is not uncontroverted that Respondent and Respondent's employees do not mistreat animals; and Mr. Kendall is principally a lobbyist with no advanced animal care training.
Respondent offers 14 Proposed Conclusions of Law (Respondent's Appeal Petition and Brief at 31-33), which are identical to the 14 Proposed Conclusions of Law in Respondent's post-hearing brief (Respondent's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 26- 29). Respondent states that his Proposed Conclusions of Law were “wrongfully rejected” in the Initial Decision and Order, but gives no reasons for this belief. I find that the Chief ALJ's fully-reasoned opinion did not wrongfully reject Respondent's Proposed Conclusions of Law, and without argument by Respondent to show otherwise, I must reject Respondent's Proposed Conclusions of Law.
Likewise, Respondent's Proposed Order (Respondent's Appeal Petition and Brief at 33-34) is a verbatim repetition of Respondent's Proposed Order from Respondent's post-hearing brief (Respondent's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 29-30). Again, Respondent contends that the Initial Decision and Order wrongly denied Respondent's Proposed Order. However, Respondent offers no argument to support this claim, which is rejected.
Respondent's Discussion of Appeal (Respondent's Appeal Petition and Brief at 34-45) is virtually identical to Respondent's Discussion in Respondent's post-hearing brief (Respondent's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 30-44). Consequently, Respondent presents no arguments on appeal which were not earlier presented to the Chief ALJ. I find that the Chief ALJ properly addressed and correctly disposed of all the arguments in Respondent's Discussion of Appeal. Thus, there is no reason to analyze this section further.
*33 Respondent makes several arguments that no sanctions should be imposed upon Respondent (Respondent's Appeal Petition and Brief at 45-46); but, again, these arguments are copied verbatim from Respondent's post-hearing brief (Respondent's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 44-45). These arguments were considered by the Chief ALJ in fashioning the Initial Decision and Order, and without Respondent providing some reason to find error, I find that the Chief ALJ properly decided these issues.
Respondent reiterates verbatim Respondent's principal- agent argument from Respondent's post-hearing brief (Respondent's Appeal Petition and Brief at 46-47). There is no merit to this argument that Respondent's sons and the others working for Respondent acted outside the scope of their employment. The Chief ALJ is correct that the statute is clear that the actions of an employee or someone acting on behalf of Respondent are deemed the actions of the Respondent (Initial Decision and Order at 24-25).
Before turning to the sanction, I address the only part of Respondent's appeal not reiterated from Respondent's post- hearing brief: the Chief ALJ's denial of Respondent's numerous pre-hearing motions (Respondent's Appeal Petition and Brief at 48). Respondent contends that “denial of these [pre-trial] motions resulted in a denial of other constitutional rights as guaranteed by the 4th, 5th, 6th, 8th, and 14th Amendments to the United States Constitution” (Respondent's Appeal Petition and Brief at 48). However, Respondent makes no arguments to support his contention that the Chief ALJ's denial of Respondent's pre- trial motions violated Respondent's constitutional rights.
The Chief ALJ's Summary of Teleconference, filed September 24, 1997, memorializes the Chief ALJ's disposition of each of Respondent's pre-trial motions. I find no error in the Chief ALJ's disposition of these motions. My examination of the procedural due process accorded Respondent by the Chief ALJ reveals no deprivation of Respondent's constitutional due process rights.
Moreover, to the extent that denial of Respondent's pre- trial motions might violate Respondent's constitutional rights, it is incumbent upon Respondent to provide enough detail in an appeal to show how his constitutional rights may have been violated. Since Respondent makes no arguments beyond bald assertions of deprivations of constitutional rights, I must reject this claim.
Sanction
Turning to the sanction, the Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991), aff'd, 991 F.2d 803 (9th Cir. 1993), 1993 WL 128889(not to be cited as precedent under 9th Circuit Rule 36-3), as follows:
[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.
*34 In light of this sanction policy, 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. The Secretary has many discretionary sanctions for remedial purposes in enforcing the Animal Welfare Act, including temporary license suspensions without a hearing; lengthier suspensions or revocations after notice and hearing; civil penalties; and cease and desist orders, as set forth in section 19 of the Animal Welfare Act (7 U.S.C. § 2149).
For the nature of the violations in this proceeding, Complainant recommends permanent revocation of Respondent's Animal Welfare Act license, a $200,000 civil penalty, a cease and desist order, and an order prohibiting Respondent from engaging in any activity as an exhibitor or dealer (Complainant's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 12-13, 23-29).
Complainant's sanction recommendation is within the range of sanctions in these kinds of cases. The Department consistently imposes significant sanctions for violations of the Animal Welfare Act and the Regulations and Standards.9 The Department in the past has permanently disqualified persons from obtaining Animal Welfare Act licenses or revoked Animal Welfare Act licenses for less serious and fewer violations than are found in this proceeding.10 As to the civil penalty, the Animal Welfare Act authorizes up to $2,500 per violation per day. “Each violation and each day during which a violation continues shall be a separate offense” (7 U.S.C. § 2149(b)).
The criteria for civil penalties in 7 U.S.C. § 2149(b) are: “[t]he 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.”
As for the size of Respondent's business, the Chief ALJ found that Respondent operated with 20 animals, some worth $80,000 to $100,000, as follows:
There was very little evidence admitted with respect to the size of Respondent's business. The January 1997 license renewal application indicates that Respondent exhibits 20 animals. (CX 2). In addition, there was testimony that the elephants at issue are worth $80,000 to $100,000 each. (Tr. 616). As such, the size of Respondent's business is sufficiently large that a $200,000 sanction cannot for that reason, be said to be excessive.
Initial Decision and Order at 25-26. I agree with the Chief ALJ that Respondent operated a large business.
I also agree with the Chief ALJ that Respondent has previous violations, as follows:
*35 Respondent also has a history of violations. Orders were issued against Respondent in two prior cases. A default order was entered in In re: John D. T. Davenport and William I. Swain, d/b/a Jungle Wonder Circus, 40 Agric. Dec. 209 (1980); and a consent decree was entered in In re: John D. Davenport, d/b/a/ King Royal Circus, AWA Docket No. 96-18 (Mar. 4, 1996) [(55 Agric. Dec. 426 (1996))].
Initial Decision and Order at 26. In In re John D.T. Davenport, supra, Respondent was one of two Respondents found to have violated the Regulations and Standards designed to keep the public at a safe distance from animals. Findings of Fact 2, 3, and 4, respectively, state that on or about July 29, 1979, Respondent failed to rope off the traveling cage of a black bear, resulting in the serious mauling, with permanent injuries, of an 8-year-old boy; that on or about July 24, 1979, Respondent failed to block access to a black bear, resulting in an 8-year- old girl being bitten on the finger; and that on or about September 20, 1979, USDA compliance officers detected that the feeding door on the bottom of a tiger cage, accessible to small children, was open and not secure (40 Agric. Dec. at 210-11).
Respondent's March 4, 1996, consent decision, In re John D. Davenport, 55 Agric. Dec. 426 (1996), does not prove a prior violation, but it can be used to determine the sanction necessary to deter Respondent from violating the Animal Welfare Act, as follows:
I am in complete agreement with the views of the Chief ALJ. Although Respondent entered into five prior consent decisions (see note 1, supra), these prior consent orders do not show prior violations by Respondent [footnote omitted]. However, the fact that the five prior consent orders did not deter the violations at issue here “could be used to determine what kind of sanction is needed to deter[Respondent] from conduct prohibited by the statute.” Spencer Livestock Comm'n Co. v. USDA, 841 F.2d 1451, 1458 (9th Cir. 1988).
In re Delta Air Lines, Inc., 53 Agric. Dec. 1076, 1085 (1994).
Respondent's violations are very serious because they go to the heart of the Animal Welfare Act, especially USDA's efforts to enforce regulations designed to protect the health and well- being of exhibited exotic species. For example, lack of proper feeding of the elephants, Donna and Heather, resulted in undernourishment such that the animals were grossly underweight. Inadequate nourishment, lack of veterinary care, lack of routine skin care, and lack of foot hygiene for the elephants contributed to the death of Heather, and to the poor physical condition of Donna. These are serious violations of the Animal Welfare Act and the Regulations and Standards.
On the issue of good faith, I agree with the Chief ALJ that Respondent did not exhibit good faith. Ben Davenport lied to Albuquerque City Police about the animals in the trailer, and later refused to cooperate with Rio Grande Zoological Park personnel attempting to teach him proper animal care. Respondent John D. Davenport refused to accept responsibility for his animals, instead blaming the Department, animal rights activists, and others, for his problems.
*36 After examining all relevant circumstances in light of the Department's sanction policy, and taking into account the requirements of 7 U.S.C. § 2149(b), the remedial purposes of the Animal Welfare Act, and the recommendation of the administrative officials, I conclude that a cease and desist order, a permanent revocation of Respondent's Animal Welfare Act license, a permanent ban on Respondent's engaging in activity as an exhibitor or dealer, and a $200,000 civil penalty, are appropriate.
For the foregoing reasons, the following Order should be issued.
Order
1. Respondent, his 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; in particular, Respondent shall cease and desist from:
(a) Failing to keep and maintain complete records showing the acquisition, disposition, and identification of animals;
(b) Failing to provide veterinary care to animals as needed;
(c) Failing to handle animals in a manner which does not cause trauma, overheating, behavioral stress, physical harm, and unnecessary discomfort to the animals;
(d) Failing to use for the transportation of animals a primary conveyance which has an animal cargo space designed and constructed to provide necessary ventilation and to otherwise protect the health and ensure the safety and comfort of the animals contained in the cargo space at all times;
(e) Transporting animals which are in obvious physical distress;
(f) Transporting animals in primary enclosures which do not provide sufficient space to allow each animal to make normal postural and social adjustments with adequate freedom of movement;
(g) Transporting animals in primary enclosures which do not contain clean litter of a suitable absorbent material in sufficient quantity to absorb and cover excreta; and
(h) Failing to provide animals with food appropriate for that species.
The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondent.
2. Respondent is assessed a civil penalty of $200,000. The civil penalty shall be paid by certified check or money order, made payable to the “Treasurer of the United States,” and sent to: Frank Martin, Jr., Esq., United States Department of Agriculture, Office of the General Counsel, 1400 Independence Avenue, SW, Room 2014-South Building, Washington, D.C. 20250- 1417. Respondent's payment of the civil penalty shall be forwarded to, and received by, Mr. Martin within 65 days after service of this Order on Respondent. Respondent shall indicate on the certified check or money order that payment is in reference to AWA Docket No. 97-0046.
3. Respondent's license is permanently revoked, and Respondent is permanently disqualified from obtaining a license under the Animal Welfare Act and the Regulations issued under the Animal Welfare Act. The Animal Welfare Act license revocation and permanent disqualification provisions of this Order shall become effective on the 65th day after service of this Order on Respondent.
*37 4. Respondent shall not, directly or indirectly through any corporate entity, agent, or other device, engage in any activity as an exhibitor or dealer within the meaning of the Animal Welfare Act and the Regulations issued under the Animal Welfare Act. In particular, and without limitation of the preceding sentence, Respondent shall not operate as an independent contractor, in conjunction with any exhibitor or dealer, nor shall Respondent lease, rent, or otherwise provide animals to any person or entity or undertaking engaged in business as an exhibitor or dealer. The provisions of this debarment from activity as an exhibitor or a dealer under the Animal Welfare Act shall become effective on the 65th day after service of this Order on Respondent.
Footnotes
[FN 1] The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g); section 4(a) of Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219, 3221 (1953), reprinted in 5 U.S.C. app. § 4(a) at 1491 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. § 6912(a)(1)). [
[FN 2] Thomas v. Hinson, 74 F.3d 888, 889 (8th Cir. 1996); Georgia Pacific Corp. v. Occupational Safety & Health Review Comm'n, 25 F.3d 999, 1004-05 (11th Cir. 1994); Throckmorton v. NTSB, 963 F.2d 441, 444 (D.C. Cir. 1992); TheGreat American Houseboat Co. v. United States, 780 F.2d 741, 746 (9th Cir. 1986); United States v. Sun & Sand Imports, Ltd., 725 F.2d 184, 187 (2d Cir. 1984).] [
[FN 3] The Great American Houseboat Co. v. United States, 780 F.2d 741, 747 (9th Cir. 1986); United States v. Sun & Sand Imports, Ltd., 725 F.2d 184, 187 (2d Cir. 1984).]
[FN 4] Respondent failed to provide veterinary care to 1 elephant for 4 days (4 violations); Respondent failed to provide routine foot and skin care to 2 elephants for an indefinite period (2 violations); Respondent handled 10 animals in a manner which caused overheating, stress, and trauma on 1 day (10 violations); Respondent failed to have records available for inspection on 3 days (3 violations); Respondent transported 11 animals in a trailer that was not properly constructed to provide for the comfort and safety of the animals on 4 days (44 violations); Respondent transported 1 elephant while in obvious physical distress for 4 days (4 violations); Respondent transported 8 llamas in an area which did not provide sufficient space for 4 days (32 violations); Respondent failed to provide sufficient litter to absorb and cover excreta for 1 day (1 violation); and Respondent failed to provide adequate food to 3 elephants for an indefinite period of time (3 violations).
[FN 5] See, e.g., In re Julian J. Toney, 56 Agric. Dec. [1235 (1997) (Decision and Order on Remand)] (assessing a $175,000 civil penalty against respondents); In re Delta Air Lines, Inc., 53 Agric. Dec. 1076 (1994) (assessing a $140,000 civil penalty against respondent). See also In re Julian J. Toney, 54 Agric. Dec. 923, 1013-18 (1995).
[FN 6] 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 C.C. Baird, 57 Agric. Dec. ___, slip op. at 27 (Mar. 20, 1998); In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 18 n.3 (Jan. 13, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1455 n.7 (1997); In re Fred Hodgins, 56 Agric. Dec. 1242, 1246 5 n.*** (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 461 (1997), appeal docketed, No. 97-3414 (3d Cir. Aug. 4, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 169 n.4 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 109 n.3 (1996); In re Julian J. Toney, 54 Agric. Dec. 923, 971 (1995), aff'd in part, rev'd in part, and remanded, 101 F.3d 1236 (8th Cir. 1996); In re Otto Berosini, 54 Agric. Dec. 886, 912 (1995); In re Micheal McCall, 52 Agric. Dec. 986, 1010 (1993); In re Ronnie Faircloth, 52 Agric. Dec. 171, 175 (1993), appeal dismissed, 16 F.3d 409, 1994 WL 32793 (4th Cir. 1994), printed in 53 Agric. Dec. 78 (1994); In re Craig Lesser, 52 Agric. Dec. 155, 166 (1993), aff'd, 34 F.3d 1301 (7th Cir. 1994); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066-67 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)); In re Terry Lee Harrison, 51 Agric. Dec. 234, 238 (1992); In re Gus White, III, 49 Agric. Dec. 123, 153 (1990); In re E. Lee Cox, 49 Agric. Dec. 115, 121 (1990), aff'd, 925 F.2d 1102 (8th Cir.), reprinted in 50 Agric. Dec. 14 (1991), cert. denied, 502 U.S. 860 (1991); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1283-84 (1988); In re David Sabo, 47 Agric. Dec. 549, 553 (1988); In re Gentle Jungle, Inc., 45 Agric. Dec. 135, 146-47 (1986); In re JoEtta L. Anesi, 44 Agric. Dec. 1840, 1848 n.2 (1985), appeal dismissed, 786 F.2d 1168 (8th Cir.) (Table), cert. denied, 476 U.S. 1108 (1986).
[FN 7] 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 C.C. Baird, 57 Agric. Dec. ___, slip op. at 48 (Mar. 20, 1998); In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 31 (Jan. 13, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1454 n.4 (1997); 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), appeal docketed, No. 97-3414 (3d Cir. Aug. 4, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 255- 56 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 138 (1996); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1284 (1988); In re David Sabo, 47 Agric. Dec. 549, 554 (1988). See also Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187 n.5 (1973) ( “•Wilfully' could refer to either intentional conduct or conduct that was merely careless or negligent.”); United States v. Illinois Central R.R., 303 U.S. 239, 242-43 (1938) (“In statutes denouncing offenses involving turpitude, •willfully' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, shows that it often denotes that which is • intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize •conduct marked by careless disregard whether or not one has the right so to act.”') The United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Tenth Circuit define the word “willfulness,” as that word is used in 5 U.S.C. § 558(c), as an intentional misdeed or such gross neglect of a known duty as to be the equivalent of an intentional misdeed. Capital Produce Co. v. United States, 930 F.2d 1077, 1079 (4th Cir. 1991); Hutto Stockyard, Inc. v. USDA, 903 F.2d 299, 304 (4th Cir. 1990); Capitol Packing Co. v. United States, 350 F.2d 67, 78-79 (10th Cir. 1965). Even under this more stringent definition, Respondent's violations would still be found willful.
[FN 8] Respondent's nine issues are as follows: ISSUES FOR APPEAL: 1) Whether the [Initial] Decision and Order is in error when it conclude[s] that Respondent willfully violated provisions of the Act? 2) Whether the [Initial] Decision and Order is in error by assessing a [civil penalty] in the amount of $200,000.00? 3) Whether the [Initial] Decision and Order is in error by permanently revoking Respondent's license? 4) Whether the [Initial] Decision and Order is in error in entering an order prohibiting Respondent from directly or indirectly, through any corporation, agent, or other device, engage [sic] in any activity as an exhibitor or dealer within the meaning of the Act and regulations. In particular, and without limitation of the preceding sentence, Respondent shall not operate as an independent contractor in conjunction with any exhibitor, nor shall Respondent lease, rent, or otherwise provide animals to any person or entity or undertaking engaged in business as an exhibitor or dealer. 5) Whether the [Initial] Decision and Order is in error by making findings, conclusions[,] and orders which were not adequately supported by the record? 6) Whether the [Initial] Decision and Order is in error by failing to include findings which were uncontroverted and supported by the record at the hearing? 7) Whether the [Initial] Decision and Order is in error when sanctions [are] based in part on prior allegations against Respondent when there was no evidence introduced in the hearing regarding this issue? 8) Whether the [Initial] Decision and Order is in error when it conclude[s] that Respondent acted willfully through the action of his sons and denied Respondent's contention that the boys were acting outside the course and scope of their employment and he was not liable for their acts? 9) Whether the hearing officer erred in failing to rule in Respondent'[s] favor with respect to the pre-hearing motions filed by Respondent? Respondent's Appeal Petition and Brief at 2-3.
[FN 9] See, e.g., In re C.C. Baird, 57 Agric. Dec. ___ (Mar. 20, 1998) (imposing a $9,250 civil penalty and a 14-day suspension for 67 violations of the Animal Welfare Act and the Regulations); In re Peter A. Lang, 57 Agric. Dec. ___ (Jan. 13, 1998) (imposing a $1,500 civil penalty for one violation of the Regulations); In re Samuel Zimmerman, 56 Agric. Dec. 1458 (1997) (imposing a $7,500 civil penalty and a 40- day suspension for 15 violations of the Animal Welfare Act and the Regulations and Standards) (Order Denying Pet. for Recons.); 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) (imposing a $10,000 civil penalty and permanent disqualification from obtaining a license for 13 violations of the Regulations and the Standards) (Modified Order); 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, the Regulations, and the Standards), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Julian J. Toney, 56 Agric. Dec. 1235 (1997) (imposing a $175,000 civil penalty and license revocation for numerous violations of the Animal Welfare Act, the Regulations, and the Standards) (Decision and Order on Remand); 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, the Regulations, and the Standards), appeal docketed, No. 97-3414 (3d Cir. Aug. 4, 1997); In re Patrick D. Hoctor, 56 Agric. Dec. 416 (1997) (imposing a $1,000 civil penalty and a 15-day license suspension for eight violations of the Animal Welfare Act, the Regulations, and the Standards) (Order Lifting Stay Order and Decision and Order); 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, the Regulations, and the Standards); In re Mary Meyers, 56 Agric. Dec. 322 (1997) (imposing a $26,000 civil penalty and a 10-year disqualification from becoming licensed under the Animal Welfare Act for 32 violations of the Animal Welfare Act, the Regulations, and the 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, the Regulations, and the Standards), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re William Joseph Vergis, 55 Agric. Dec. 148 (1996) (imposing a $2,500 civil penalty and a 1-year disqualification from becoming licensed under the Animal Welfare Act 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, the Regulations, and the 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, the Regulations, and the Standards); In re Tuffy Truesdell, 53 Agric. Dec. 1101 (1994) (imposing a $2,000 civil penalty and 60-day license suspension for numerous violations on four different dates over a 13-month period); 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).
[FN 10] See, e.g., 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) (imposing a $10,000 civil penalty and permanent disqualification from obtaining a license for 13 violations of the Regulations and the Standards) (Modified Order); In re Julian J. Toney, 56 Agric. Dec. 1235 (1997) (imposing a $175,000 civil penalty and license revocation for numerous violations of the Animal Welfare Act, the Regulations, and the Standards) (Decision and Order on Remand); 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, the Regulations, and the Standards), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); 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).