The court concluded that respondent had committed more than thirty violations of the AWA for his abuse of his exhibition animals (mainly leopards). Among the violations were a failure to maintain required records, failure to provide veterinary care, failure to comply with standards affecting all aspects of cat care, and physically abusing animals. As a result, respondent's license was suspended, a civil penalty was imposed and an order was issued directing respondent to cease and desist from violating the Act. Although respondent sought the protection of the bankruptcy code, the automatic stay of proceedings provided by bankruptcy law does not prevent the Department from obtaining corrective action to preserve animal welfare.
Initial Decision and Order
This decision is promulgated pursuant to the Administrative Procedure Act, Pub. L. 89-554, September 6, 1966, 80 Stat. 384, as amended Pub. L. 95- 251, March 27, 1978, 92 Stat. 183, [FN1] the Rules of Practice governing proceedings under the Animal Welfare Act, 9 C.F.R. s 4.1 (1992) and the Rules of Practice of the Department of Agriculture Governing Formal Adjudicatory Administrative Proceedings, 7 C.F.R. ss 1.130-1.151 (1992). This is a disciplinary proceeding under the Animal Welfare Act of 1970, and amendments of 1976, Pub. L. 91-579, December 24, 1970, 84 Stat. 1560, renumbered and amended Pub. L. 94-279, April 22, 1976, 90 Stat. 417, [FN2] hereinafter referred to as the Act, instituted by complaints [FN3] filed on March 21, 1991 and August 13, 1991, by the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture.
The complaints allege that Alex Pasternak, hereinafter respondent, willfully violated the Act, and regulations and standards promulgated pursuant to the Act. Specifically, the complaints allege that between February 16, 1989 and February 26, 1991, respondent failed to maintain sufficient records, health, and neglected the housing, and nutrition needs of various animals. These complaints advise the respondent of an opportunity to answer. The complaints further advise the respondent that the Department of Agriculture propose an order suspending respondent's license, the imposition of civil penalties and a cease and desist order.
**2 By answers to the complaints filed April 23, 1991 and September 26, 1991, respondent denies the essential allegations of the complaints.
A public hearing was held on April 7, 1992, in Las Vegas, Nevada, before the undersigned. Subsequently, proposed findings and conclusions and a brief were filed by counsel. To the extent indicated, the proposed findings of counsel are adopted herein. All other proposed findings, conclusions and arguments are rejected as irrelevant or lacking legal or evidentiary bases. As used herein, "Tr." refers to the transcript of the public hearing. "CX" refers to the numbered exhibits offered by complainant's counsel. Exhibits were not offered by respondent's counsel.
The interests of the Department are represented by Frank Martin, Jr., Esq., Washington, D.C. The interests of Mr. Pasternak were represented by Jeffrey N. Samuels, Esq., [FN4] Las Vegas, Nevada, and subsequent to October 29, 1992, by Michael C. Van, Esq., Las Vegas, Nevada.
Upon consideration of all matters of record, the following Findings of Fact are made and Conclusions of Law are reached. As a result thereof, there is issued an order as to respondent Alex Pasternak, assessing civil penalties in the sum of $10,000, entering cease and desist provisions and suspending the operative's license for one year.
Findings of Fact
1. Alex Pasternak, hereinafter referred to as respondent, is an individual whose address is Post Office Box 2838, Pahrump, Nevada 89041. (See, Answer, AWA Dkt. No. 91-39 and AWA Dkt. No. 91-60)
2. The respondent, at all times material herein, was licensed and operating as an exhibitor as defined in the Act and the regulations. (See, Answer, AWA Dkt. No.91-39 and AWA Dkt. No. 91-60; Tr. 196)
3. At the time of respondent's application for a license, he was given a copy of the Act and the regulations and standards promulgated under the Act, and agreed in writing to comply with them. (See, Section 2.2 of the regulations (9 C.F.R. s 2.2); Tr. 200-201)
4. The parties stipulated that the videotape marked as CX 10 was taken on February 26, 1991, at the Visions Video Studio by studio technician Bob McBride, and that it may be admitted into evidence without testimony or further authentication. (CX 11; Tr. 6, 78 and 127)
5. The videotape CX 10 showed the respondent pulling and dragging a leopard by a neck collar. (CX 10; Tr. 129-130)
6. Dragging or pulling an exotic cat (leopard) around using a neck collar is not an accepted method of handling it or any other animal. (Tr. 125, 137-138, 231-232)
7. Dragging or pulling an exotic cat (leopard) around using a neck collar subjects the animal to a wide range of injuries. (Tr. 125-126, 137-138, 146)
8. On February 26, 1991, respondent handled a leopard during a public exhibition in a manner which caused trauma, behavioral stress, physical harm, and unnecessary discomfort to the animal. (CX 10; Tr. 136- 137, 141)
9. On February 26, 1991, respondent handled a leopard during a public exhibition in a manner which was physically abusive. (CX 10, Tr. 136-138, 141)
**3 10. The behavior exhibited by the leopard as recorded in the videotape (CX 10) is not consistent with an animal that has been overfed. (Tr. 141-142, 232)
11. The behavior exhibited by the leopard as recorded in the videotape (CX 10) is not consistent with an animal who is unfamiliar with its surroundings. (Tr. 230-231)
12. The behavior exhibited by the leopard as recorded in the videotape (CX 10) was not the result of a number of people being around. (Tr. 231)
13. The behavior exhibited by the leopard as recorded in the videotape (CX 10) was not the result of heat or humidity. (Tr. 231)
14. Exotic cats, such as leopards, are not domesticated cats. (Tr. 232)
15. The behavior exhibited by the leopard as recorded in the videotape (CX 10) was consistent with the behavior of an animal that has been tranquilized or sedated. (Tr. 231)
16. On February 26, 1991, respondent used drugs, such as tranquilizers, to facilitate the public handling of a leopard. (CX 10; Tr. 138-140, 231)
17. From February 16, 1989 through October 4, 1990, respondent's facility in Pahrump, Nevada, was inspected by an experienced Animal Care Inspector with the United States Department of Agriculture ("USDA"), Animal and Plant Health Inspection Service ("APHIS"). (Tr. 11-17) These inspections revealed that the facility and a traveling show were not in compliance with the Act and the regulations and standards issued under the Act. (CX 1-9) Respondent or his agents were informed that the inspections had disclosed violations of the Act and the regulations and standards issued under the Act. Respondent received copies of each inspection report marked CX 1 through CX 9. (Tr. 204-205) Respondent was afforded numerous opportunities to achieve compliance. (CX 1- 9) Each inspection report served as a written notice to respondent that certain items were found to be deficient and below the minimum standards at the time of the inspection. (Tr. 27).
18. On October 4, 1990, APHIS inspected respondent's facility (CX 1) and found that:
A. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of all animals. (Tr. 34-35)
B. Respondent failed to maintain a written program of veterinary care under the supervision and assistance of a doctor of veterinary medicine. (Tr. 30- 31)
C. Respondent failed to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a reinforced and suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Tr. 31- 33)
19. On March 24, 1990, APHIS inspected respondent's facility (CX 2) and found that:
A. Respondent failed to provide an animal with a primary enclosure that was constructed and maintained so as to provide sufficient space to allow the animal to turn about freely and to easily stand and sit in a comfortable normal position. (Tr. 38-39)
**4 B. Respondent during a public exhibition failed to provide a sufficient distance or barrier between animals and the general viewing public, and an identifiable employee or attendant was not present during periods of public contact. (Tr. 39-40)
20. On January 31, 1990, APHIS inspected respondent's facility (CX 3) and found that:
A. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of all animals. (Tr. 41)
B. Respondent failed to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Tr. 41)
21. On January 3, 1990, APHIS inspected respondent's facility (CX 4) and found that:
A. Respondent failed to maintain a written program of veterinary care under the supervision and assistance of a doctor of veterinary medicine. (Tr. 50- 51)
B. Respondent failed to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Tr. 42)
C. Respondent failed to store food for animals so as to adequately protect it against infestation or contamination by vermin. (Tr. 43-44)
D. Respondent failed to remove and dispose of animal wastes so as to minimize vermin infestation, odors, and disease hazards. (Tr. 44-46)
E. Respondent failed to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals. (Tr. 46-48)
F. Respondent failed to keep primary enclosures for animals clean. (Tr. 49- 50)
22. On August 4, 1989, APHIS inspected respondent's facility (CX 5) and found that:
A. Respondent failed to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Tr. 51)
23. On July 11, 1989, APHIS inspected respondent's facility (CX 6) and found that:
A. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of all animals. (Tr. 53-54)
B. Respondent failed to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Tr. 53)
C. Respondent failed to store food for animals so as to adequately protect it against infestation or contamination by vermin. (Tr. 53)
D. Respondent failed to establish and maintain an effective program of pest control. (Tr. 54-56)
E. Respondent failed to provide veterinary care to an animal in need of care. (Tr. 56-58)
**5 24. On June 16, 1989, APHIS inspected respondent's facility (CX 7) and found that:
A. Respondent failed to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Tr. 59)
B. Respondent failed to store food for animals so as to adequately protect it against infestation or contamination by vermin. (Tr. 60)
C. Respondent failed to remove and dispose of animal wastes so as to minimize vermin infestation, odors, and disease hazards. (Tr. 60-61)
D. Respondent failed to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals. (Tr. 61)
E. Respondent failed to provide an animal with a primary enclosure that was constructed and maintained so as to provide sufficient space to allow the animal to turn about freely and to easily stand and sit in a comfortable normal position. (Tr. 62)
F. Respondent failed to keep food receptacles for animals clean. (Tr. 63)
G. Respondent failed to provide veterinary care to an animal in need of care. (Tr. 64)
H. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of all animals. (Tr. 65)
25. On May 15, 1989, APHIS inspected respondent's facility (CX 8) and found that:
A. Respondent failed to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Tr. 66)
B. Respondent failed to keep food receptacles for animals clean. (Tr. 66)
C. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of all animals. (Tr. 67)
D. Respondent failed to provide an animal kept outdoors with adequate shelter from inclement weather. (Tr. 67)
E. Respondent failed to keep primary enclosures for animals clean. (Tr. 69- 70)
F. Respondent failed to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals. (Tr. 69)
G. Respondent failed to maintain animals in primary enclosures in compatible groups. (Tr. 67)
26. On February 16, 1989, APHIS inspected respondent's facility (CX 9) and found that:
A. Respondent failed to maintain complete records showing the acquisition, disposition, and identification of all animals. (Tr. 77)
B. Respondent failed to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Tr. 71)
C. Respondent failed to store food for animals so as to adequately protect it against infestation or contamination by vermin. (Tr. 71)
**6 D. Respondent failed to keep food receptacles for animals clean. (Tr. 72-73)
E. Respondent failed to utilize a sufficient number of employees to maintain the prescribed level of husbandry practices. (Tr. 73-76)
F. Respondent failed to maintain animals in primary enclosures in compatible groups. (Tr. 76-77)
Conclusions
27. The Secretary has jurisdiction in this matter. (Finding 3)
28. Respondent is an exhibitor as defined in the Act. (Finding 2)
29. On February 26, 1991, the respondent willfully violated section 2.131(a)(1) of the regulations (9 C.F.R. s 2.131(a)(1)) by handling a leopard in a manner which caused trauma, behavioral stress, physical harm, and unnecessary discomfort. (Findings 4, 5, 6, 7, 8)
30. On February 26, 1991, the respondent willfully violated section 2.131(a)(2)(i) of the regulations (9 C.F.R. s 2.131(a)(2)(i)) by handling a leopard in a manner which was physically abusive. (Finding 9)
31. On February 26, 1991, the respondent willfully violated section 2.131(b)(4) of the regulations (9 C.F.R. s 2.131(b)(4)) by using drugs, such as tranquilizers, to facilitate the public handling of a leopard. (Findings 10, 11, 12, 13, 14, 15, 16)
32. On october 4, 1990, the respondent willfully violated section 10 of the Act (7 U.S.C. s 2140) and section 2.75(b)(1) of the regulations (9 C.F.R. s 2.75(b)(1)) by failing to maintain complete records showing the acquisition, disposition, and identification of animals. (Findings 17, 18)
33. On October 4, 1990, the respondent willfully violated section 2.40 of the regulations (9 C.F.R. s 2.40) by failing to maintain a written program of veterinary care under the supervision and assistance of a doctor of veterinary medicine. (Findings 17, 18)
34. On October 4, 1990, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(a) of the standards (9 C.F.R. s 3.125(a)) by failing to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a reinforced and suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Findings 17, 18)
35. On March 24, 1990, the respondent willfully violated sections 2.131(b)(1) and (c)(2) of the regulations (9 C.F.R. ss 2.131(b)(1) and (c)(2) by failing to provide a sufficient distance or barrier between animals and the general viewing public during a public exhibition, and by failing to have an identifiable employee or attendant present during periods of public contact. (Findings 17, 19)
36. On March 24, 1990, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.128 of the standards (9 C.F.R. s 3.128) by failing to provide an animal with a primary enclosure that was constructed and maintained so as to provide sufficient space to allow the animal to turn about freely and to easily stand and sit in a comfortable normal position. (Findings 17, 19)
**7 37. On January 31, 1990, the respondent willfully violated section 10 of the Act (7 U.S.C. s 2140) and section 2.75(b)(1) of the regulations by failing to maintain complete records showing the acquisition, disposition, and identification of animals. (Findings 17, 20)
38. On January 31, 1990, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(a) of the standards (9 C.F.R. s 3.125(a)) by failing to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Findings 17, 20)
39. On January 3, 1990, the respondent willfully violated section 2.40 of the regulations (9 C.F.R. ss 2.40) by failing to maintain a written program of veterinary care under the supervision and assistance of a doctor of veterinary medicine. (Findings 17, 21)
40. On January 3, 1990, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(a) of the standards (9 C.F.R. s 3.125(a)) by failing to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Findings 17, 21)
41. On January 3, 1990, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(c) of the standards (9 C.F.R. s 3.125(c)) by failing to store food so as to adequately protect it against infestation or contamination by vermin. (Findings 17, 21)
42. On January 3, 1990, the respondent wilfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(d) of the standards (9 C.F.R. s 3.125(d)) by failing to remove and dispose of animal wastes so as to minimize vermin infestation, odors, and disease hazards. (Findings 17, 21)
43. On January 3, 1990, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.127(c) of the standards (9 C.F.R. s 3.127(c)) by failing to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals. (Findings 17, 21)
44. On January 3, 1990, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.131(a) of the standards (9 C.F.R. s 3.131(a)) by failing to keep primary enclosures for animals clean. (Findings 17, 21)
45. On August 4, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(a) of the standards (9 C.F.R. s 3.125(a)) by failing to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Findings 17, 22)
**8 46. On July 11, 1989, the respondent willfully violated section 10 of the Act (7 U.S.C. s 2140) and section 2.75(b)(1) of the regulations by failing to maintain complete records showing the acquisition, disposition, and identification of animals. (Findings 17, 23)
47. On July 11, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.134(b) of the standards (9 C.F.R. s 3.134(b)) by failing to provide veterinary care to an animal in need of care. (Findings 17, 23)
48. On July 11, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(a) of the standards (9 C.F.R. s 3.125(a)) by failing to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Findings 17, 23)
49. On July 11, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(c) of the standards (9 C.F.R. s 3.125(c)) by failing to store food so as to adequately protect it against infestation or contamination by vermin. (Findings 17, 23)
50. On July 11, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.131(d) of the standards (9 C.F.R. s 3.131(d)) by failing to establish and maintain an effective program of pest control. (Findings 17, 23)
51. On June 16, 1989, the respondent willfully violated section 10 of the Act (7 U.S.C. s 2140) and section 2.75(b)(1) of the regulations by failing to maintain complete records showing the acquisition, disposition, and identification of animals. (Findings 17, 24)
52. On June 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.134(b) of the standards (9 C.F.R. s 3.134(b)) by failing to provide veterinary care to an animal in need of care. (Findings 17, 24)
53. On June 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(a) of the standards (9 C.F.R. s 3.125(a)) by failing to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Findings 17, 24)
54. On June 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(c) of the standards (9 C.F.R. s 3.125(c)) by failing to store food so as to adequately protect it against infestation or contamination by vermin. (Findings 17, 24)
55. On June 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(d) of the standards (9 C.F.R. s 3.125(d)) by failing to remove and dispose of animal wastes so as to minimize vermin infestation, odors, and disease hazards. (Findings 17, 24)
**9 56. On June 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.127(c) of the standards (9 C.F.R. s 3.127(c)) by failing to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals. (Findings 17, 24)
57. On June 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.128 of the standards (9 C.F.R. s 3.128) by failing to provide an animal with a primary enclosure that was constructed and maintained so as to provide sufficient space to allow the animal to turn about freely and to easily stand and sit in a comfortable normal position. (Findings 17, 24)
58. On June 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.129(b) of the standards (9 C.F.R. s 3.129(b)) by failing to keep food receptacles for animals clean. (Findings 17, 24)
59. On May 15, 1989, the respondent willfully violated section 10 of the Act (7 U.S.C. s 2140) and section 2.75(b)(1) of the regulations by failing to maintain complete records showing the acquisition, disposition, and identification of animals. (Findings 17, 25)
60. On May 15, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(a) of the standards (9 C.F.R. s 3.125(a)) by failing to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Findings 17, 25)
61. On May 15, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.127(b) of the standards (9 C.F.R. s 3.127(b)) by failing to provide an animal kept outdoors with adequate shelter from inclement weather. (Findings 17, 25)
62. On May 15, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.127(c) of the standards (9 C.F.R. s 3.127(c)) by failing to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals. (Findings 17, 25)
63. On May 15, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.129(b) of the standards (9 C.F.R. s 3.129(b)) by failing to keep food receptacles for animals clean. (Findings 17, 25)
64. On May 15, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.131(a) of the standards (9 C.F.R. s 3.131(a)) by failing to keep primary enclosures for animals clean. (Findings 17, 25)
65. On May 15, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.133 of the standards (9 C.F.R. s 3.133) by failing to maintain animals in primary enclosures in compatible groups. (Findings 17, 25)
**10 66. On February 16, 1989, the respondent willfully violated section 10 of the Act (7 U.S.C. s 2140) and section 2.75(b)(1) of the regulations by failing to maintain complete records showing the acquisition, disposition, and identification of animals. (Findings 17, 26)
67. On February 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(a) of the standards (9 C.F.R. s 3.125(a)) by failing to construct a facility which was structurally sound and appropriate for the animals involved (lions, tigers, cougars, and leopards), in that it lacked a suitable perimeter fence to contain the animals, and to restrict the entrance of other animals. (Findings 17, 26)
68. On February 16,1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.125(c) of the standards (9 C.F.R. s 3.125(c)) by failing to store food so as to adequately protect it against infestation or contamination by vermin. (Findings 17, 26)
69. On February 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.129(b) of the standards (9 C.F.R. s 3.129(b)) by failing to keep food receptacles for animals clean. (Findings 17, 26)
70. On February 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.132 of the standards (9 C.F.R. s 3.132) by failing to utilize a sufficient number of employees to maintain the prescribed level of husbandry practices. (Findings 17, 26)
71. On February 16, 1989, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. s 2.100(a)) and section 3.133 of the standards (9 C.F.R. s 3.133) by failing to maintain animals in primary enclosures in compatible groups. (Findings 17, 26)
Discussion
The policy of the Animal Welfare Act at 7 U.S.C.A. s 2131 (West 1988) provides as follows:
The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order--
(1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment;
(2) to assure the humane treatment of animals during transportation in commerce; and
* * * * *
The Act itself provides at 7 U.S.C.A. s 2140 (West 1988) that exhibitors shall maintain such records as the Secretary may require. And, at 7 U.S.C.A. ss 2143, 2151 (West 1988), the Secretary is authorized to issue such regulations and standards as may be appropriate to effectuate the intent of the Act.
Failure to abide by the Act, regulations and standards may result in the imposition of sanctions; the revocation or suspension of the exhibitor's license, 7 U.S.C.A. s 2149(a) (West 1988), the imposition of cease and desist orders and the levying of civil penalties, 7 U.S.C.A. s 2149(b) (West 1988).
**11 The evidence in this case, based in part upon admissible hearsay, is determined to be substantial, Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L.Ed.2d 842, and found to be reliable and probative. It is also largely indisputed. See, Respondent's Proposed Findings of Fact filed December 10, 1992.
Mr. Pasternak owns more than the usual number of large cats. He is responsible for the care of some 20 carnivores. [FN5] He is an exhibitor, and a licensee of the Department. Therefore, his past failures to abide by the Act, the regulations and the standards as they existed on the dates of the alleged infractions, Pet Paradise, Inc., 51 Agric. Dec. 1047, 1062 (AWA Dkt. No. 90-2) (September 16, 1992) require the imposition of sanctions.
However, prior to the entry of the order herein, consideration will be given to 7 U.S.C.A. s 2149(b) (West 1988) which provides that:
. . . 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. [FN26] (Footnote omitted.)
Mr. Pasternak has displayed attempts to comply with the requests of the Department's inspectors. However, the number of violations, the frequency of those violations and the scope of deficiencies require that Mr. Pasternak's attention be focused on important matters. This hearing produced evidence which established that Mr. Pasternak has failed to maintain records, failed to provide veterinary care, and failed to comply with the standards affecting all aspects of cat care. The evidence shows physical abuse. (Conclusions 29, 30, 31) It shows that during the visits by the Department's inspectors, Mr. Pasternak was advised of the steps that needed to be taken to obtain compliance. (Tr. 29-36, 41, 44) Mr. Pasternak was given written notice of deficiencies (Tr. 204-205), and so, he knew that his lack of correct action was viewed as a serious failure.
While Mr. Pasternak has sought the protection of the bankruptcy laws, See Notice filed November 18, 1992, the bar at 11 U.S.C.A. s 362(b)(4) (West 1993) does not restrict the Department's ability to obtain the corrective action required to maintain and preserve the welfare of animals. See Complaint Counsel's Filing of November 12, 1992.
Accordingly, the following order is entered.
Order
1. Respondent, his agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards issued thereunder, and in particular, shall cease and desist from operating as an exhibitor within the meaning of the Act and regulations without:
(a) Maintaining complete records showing the acquisition, deposition, and identification of animals;
(b) Maintaining a current, written program of veterinary care under the supervision of a veterinarian;
**12 (c) Providing veterinary care to animals as needed;
(d) Providing a suitable method for the removal and disposal of animal wastes from the facility;
(e) Providing the animals with shelter from inclement weather;
(f) Providing a suitable method to rapidly eliminate excess water from the facility;
(g) Maintaining the facility so that it is structurally sound and in good repair, and appropriate for the animals involved, in order to protect the animals from injury and to contain the animals, including maintaining a suitable perimeter fence;
(h) Providing enclosures for animals that are constructed and maintained so as to provide sufficient space to allow each animal to turn about freely and to easily stand, sit and lie in a comfortable normal position;
(i) Providing a sufficient distance or barrier during public exhibition between animals and the general viewing public, and having an identifiable employee or attendant present during periods of public contact;
(j) Storing food so as to adequately protect it against infestation or contamination by vermin;
(k) Cleaning primary enclosures for animals as required;
(l) Establishing and maintaining an effective program for the control of pests;
(m) Cleaning food receptacles for animals as required;
(n) Utilizing a sufficient number of employees to maintain the prescribed level of husbandry practices;
(o) Maintaining animals in primary enclosures in compatible groups;
(p) Handling animals in a manner which does not cause trauma, behavioral stress, physical harm, and unnecessary discomfort;
(q) Handling animals in a manner which is not physically abusive; and
(r) Refraining from using drugs, such as tranquilizers, to facilitate the public handling of animals.
2. Respondent is assessed a civil penalty of $10,000, which shall be paid by certified check or money order made payable to the Treasurer of the United States.
3. Respondent's license is suspended for a period of one year and continuing thereafter until he demonstrates to the Animal and Plant Health Inspection Service (APHIS) that he is in full compliance with the Act and the regulations and standards issued thereunder and this order, including payment of the civil penalty assessed against him. It is respondent's responsibility to contact APHIS to arrange for an inspection of his facility in order to demonstrate that he is in compliance. When respondent demonstrates to APHIS that he has satisfied these conditions, a supplemental order will be issued in this proceeding upon the motion of APHIS, terminating the suspension.
This decision and order shall become final without further proceedings thirty-five (35) days after service hereof unless appealed to the Judicial Officer within thirty (30) days after service, as provided in the Rules of Practice (7 C.F.R. ss 1.142, 1.145).
This Order shall take effect on the eleventh (11th) day after this decision becomes final.
**13 Copies hereof shall be served upon Mr. Pasternak and counsel.
[This Decision and Order became final June 18, 1993.-Editor]
FN1 5 U.S.C.A. §§ 554, 557 (West 1977 and Supp. 1992) [hereinafter cited as unofficially codified].
FN2 7 U.S.C.A. §§ 2131-2147, 2149, 2151-2155 (West 1988 and Supp. 1992) [hereinafter cited as unofficially codified].
FN3 By order filed October 30, 1991, the matters docketed as AWA Dkt. No. 91-39 and as AWA Dkt. No. 91-60 were consolidated under AWA Dkt. No. 91- 39. By order filed January 8, 1992, certain typographical errors in the complaints were noted and corrected. By unopposed motion by complaint counsel certain other typographical errors expressed in the complaint in Dkt. No. 91-39 were corrected. (Tr. 6-7)
FN4 By order filed August 28, 1992, Mr. Samuels was debarred from further participation herein.
FN5 The Department has applied its regulations and standards affecting "cats" to lions. See, Gus White III and Betty White, 49 Agric. Dec. 123, 141 (AWA Dkt. No. 425) (February 8, 1990).