This case is a disciplinary proceeding under the Animal Welfare Act, as amended, (7 U.S.C. § 2131 et seq.), (hereafter Act), and the regulations and standards issued under the Act, (9 C.F.R. § 1.1 et seq.). The proceeding was instituted by a Complaint filed on July 9, 1993, by the Acting Administrator of *108 the Animal and Plant Health Inspection Service ("APHIS"), United States Department of Agriculture ("USDA").
**2 The Complaint alleges that Respondents, Big Bear Farm, Inc., Andrew Burr, and Carol Burr, willfully violated the Act and regulations and standards issued under the Act. Respondents filed an Answer to the Complaint, and a hearing was held in Scranton, Pennsylvania, on January 25-26, 1995. Sharlene A. Deskins, Esq., represented Complainant. Alan B. Cooper, Esq., represented Respondents.
On June 2, 1995, Administrative Law Judge James W. Hunt, (hereafter ALJ), issued an Initial Decision and Order assessing a civil penalty of $1,500 jointly and severally against Respondents Andrew Burr and Carol Burr, suspending Respondent Big Bear Farm, Inc.'s, license under the Act for 30 days and thereafter until Respondents' facility is found by APHIS to be in compliance with the Act and the regulations and standards issued under the Act, and directing Respondents to cease and desist from various practices.
On June 30, 1995, Respondents appealed to the Judicial Officer to whom authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 has been delegated. (7 C.F.R. § 2.35.) [FN1] On August 11, 1995, Complainant filed an Appeal and Opposition to the Respondents' Appeal. On September 7, 1995, Respondents filed a Response to Complainant's Appeal and Opposition to Respondents' Appeal. On September 7, 1995, the case was referred to the Judicial Officer for decision.
Based upon a careful consideration of the record in this case, I agree with the ALJ that Respondents willfully violated the Act and the regulations and standards issued under the Act. Specifically, I agree with the ALJ's finding that Respondents committed the violations alleged in paragraphs IV(A); IV(B)(1), with respect to violations of 9 C.F.R. §§ 2.100(a) and 3.125(a); IV(B)(3); IV(B)(4); IV(B)(5), with respect to violations of 9 C.F.R. §§ 2.100(a) and 3.131(c); V(B)(1); V(B)(3); VI(B); VI(C)(1); VI(C)(5); VII(A); VII(B)(3); *109 VII(B)(4); VII(B)(5); VIII(A); VIII(B); VIII(C)(1); and VIII(C)(2) of the Complaint. [FN2]
However, I agree with Complainant that the ALJ dismissed many violations alleged in the Complaint that Complainant has proven by at least a preponderance of the evidence. [FN3] Specifically, I agree with Complainant that it has carried its burden of proof by a preponderance of the evidence with respect to the violations alleged in paragraphs II(1); III(A); III(B)(1), with respect to violations of 9 C.F.R. §§ 2.100(a) and 3.125(a); III(B)(3); III(B)(4); III(B)(5); III(B)(7); III(B)(8); III(B)(9), with respect to violations of 9 C.F.R. §§ 2.100(a) and 3.131(c); IV(B)(2); V(A); V(B)(2); VI(A); VI(C)(2); VI(C)(3); VI(C)(4); VI(C)(6), with respect to violations of 9 C.F.R. §§ 2.100(a) and 3.56(a); and VII(B)(2) of the Complaint.
While the Complainant has a prima facie case with respect to the violations alleged in paragraphs III(B)(1), with respect to violations of 9 C.F.R. §§ 3.53(a) and 3.80(a); III(B)(2); III(B)(9), with respect to a violation of 9 C.F.R. § 3.84(c); III(B)(10); IV(B)(1), with respect to violations of 9 C.F.R. §§ 3.53(a) *110 and 3.80(a); IV(B)(5), with respect to a violation of 9 C.F.R. § 3.84(c); VI(C)(6), with respect to a violation of 9 C.F.R. § 3.56(b); VI(C)(7); and VII(B)(1) of the Complaint, I find that the evidence is not as strong as that customarily necessary in these types of cases to support reversal of the ALJ. Further, Complainant has not appealed the ALJ's dismissal of the violation alleged in paragraph III(B)(6) of the Complaint.
**3 Since I found numerous violations not found by the ALJ, I have not adopted the ALJ's Initial Decision and Order as the final Decision and Order. However, since I agree with all of the violations that the ALJ did find, much of the ALJ's discussion of the facts is incorporated into the final Decision and Order. Further, I adopted the ALJ's Findings of Fact and Conclusions of Law, with deletions shown by dots, additions shown by brackets, and minor editorial changes not specified, to which I, of course, added my additional Findings of Fact and Conclusions of Law.
Applicable Statutory Provision, Regulations, and Standards
7 U.S.C.:
§ 2140. Recordkeeping by dealers, exhibitors, research facilities, intermediate handlers, and carriers
Dealers and exhibitors shall make and retain for such reasonable period of time as the Secretary may prescribe, such records with respect to the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe. . . . Such records shall be made available at all reasonable times for inspection and copying by the Secretary. (7 U.S.C. § 2140.)
9 C.F.R.:
PART 2 -- REGULATIONS
Subpart D--Attending Veterinarian and Adequate Veterinary Care
§ 2.40 Attending veterinarian and adequate veterinary care (dealers and exhibitors).
*111 (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
**4 (5) Adequate pre-procedural and post-procedural care in accordance with established veterinary medical and nursing procedures. (9 C.F.R. § 2.40.)
. . . .
Subpart G--Records
*112 § 2.75 Records: Dealers and exhibitors.
. . . .
(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;
(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. (9 C.F.R. § 2.75(b)(1).)
. . . .
Subpart H--Compliance With Standards and Holding Period
§ 2.100 Compliance with standards.
(a) Each dealer, exhibitor, operator of an auction sale, and intermediate handler shall comply in all respects with the regulations set forth in part 2 and the standards set forth in part 3 of this subchapter for the humane handling, care, treatment, housing, and transportation of animals. (9 C.F.R. § 2.100(a).)
. . . .
*113 PART 3--STANDARDS
Subpart C--Specifications for the Humane Handling, Care, Treatment and Transportation of Rabbits
§ 3.52 Facilities, outdoor.
(a) Shelter from sunlight. When sunlight is likely to cause overheating or discomfort, sufficient shade shall be provided to allow all rabbits kept outdoors to protect themselves from the direct rays of the sun. . . .)
(b) Shelter from rain or snow. Rabbits kept outdoors shall be provided with access to shelter to allow them to remain dry during rain or snow. (9 C.F.R. § 3.52(a), (b).)
. . . .
§ 3.55 Watering.
Sufficient potable water shall be provided daily except as might otherwise be required to provide adequate veterinary care. All watering receptacles shall be sanitized when dirty: Provided, however, That such receptacles shall be sanitized at least once every 2 weeks. (9 C.F.R. § 3.55.)
§ 3.56Sanitation.
(a) Cleaning of primary enclosures. (1) Primary enclosures shall be kept reasonably free of excreta, hair, cobwebs and other debris by periodic cleaning. Measures shall be taken to prevent the wetting of rabbits in such enclosures if a washing process is used.
**5 (2) In primary enclosures equipped with solid floors, soiled litter shall be removed and replaced with clean litter at least once each week.
(3) If primary enclosures are equipped with wire or mesh floors, the troughs or pans under such enclosures shall be cleaned at least once each week. If worm bins are used under such enclosures[,] they shall be maintained in a sanitary condition.
*114 (b) Sanitization of primary enclosures. (1) Primary enclosures for rabbits shall be sanitized at least once every 30 days in the manner provided in paragraph (b)(3) of this section.
(2) Prior to the introduction of rabbits into empty primary enclosures previously occupied, such enclosures shall be sanitized in the manner provided in paragraph (b)(3) of this section.
(3) Primary enclosures for rabbits shall be sanitized by washing them with hot water (180£ F.) and soap or detergent as in a mechanical cage washer, or by washing all soiled surfaces with a detergent solution followed by a safe and effective disinfectant, or by cleaning all soiled surfaces with live steam or flame. (9 C.F.R. § 3.56.)
. . . .
Subpart D--Specifications for the Humane Handling, Care, Treatment, and Transportation of Nonhuman Primates
§ 3.81 Environmental enhancement to promote psychological well-being.
Dealers, exhibitors, and research facilities must develop, document, and follow an appropriate plan for environmental enhancement adequate to promote the psychological well-being of nonhuman primates. The plan must be in accordance with the currently accepted professional standards as cited in appropriate professional journals or reference guides, and as directed by the attending veterinarian. This plan must be made available to APHIS upon request. . . . (9 C.F.R. § 3.81.)
. . . .
§ 3.84 Cleaning, sanitization, housekeeping, and pest control.
(a) Cleaning of primary enclosures. Excreta and food waste must be removed from inside each indoor primary enclosure daily and from underneath them as often as necessary to prevent an excessive accumulation of feces and food waste, to prevent the nonhuman primates from becoming soiled, and to reduce disease hazards, insects, *115 pests, and odors. Dirt floors, floors with absorbent bedding, and planted areas in primary enclosures must be spot-cleaned with sufficient frequency to ensure all animals the freedom to avoid contact with excreta, or as often as necessary to reduce disease hazards, insects, pests, and odors. When steam or water is used to clean the primary enclosure, whether by hosing, flushing, or other methods, nonhuman primates must be removed, unless the enclosure is large enough to ensure the animals will not be harmed, wetted, or distressed in the process. Perches, bars, and shelves must be kept clean and replaced when worn. If the species of the nonhuman primates housed in the primary enclosure engages in scent marking, hard surfaces in the primary enclosure must be spot-cleaned daily.
**6 . . . .
(c) Housekeeping for premises. Premises where housing facilities are located, including buildings and surrounding grounds, must be kept clean and in good repair in order to protect the nonhuman primates from injury, to facilitate the husbandry practices required in this subpart, and to reduce or eliminate breeding and living areas for rodents, pests, and vermin. Premises must be kept free of accumulations of trash, junk, waste, and discarded matter. Weeds, grass, and bushes must be controlled so as to facilitate cleaning of the premises and pest control. (9 C.F.R. § 3.84(a), (c).)
. . . .
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
§ 3.125 Facilities, general.
(a) Structural strength. The facility must be constructed of such material and of such strength as appropriate for the animals involved. The indoor and outdoor housing facilities shall be structurally sound and shall be maintained in good repair to protect the animals from injury and to contain the animals.
. . . .
*116 (c) Storage. Supplies of food and bedding shall be stored in facilities which adequately protect such supplies against deterioration, molding, or contamination by vermin. . . .
(d) Waste disposal. Provision shall be made for the removal and disposal of animal and food wastes, bedding, dead animals, trash and debris. Disposal facilities shall be so provided and operated as to minimize vermin infestation, odors, and disease hazards. . . . (9 C.F.R. § 3.125(a), (c), (d).)
. . . .
§ 3.127 Facilities, outdoor.
. . . .
(b) Shelter from inclement weather. Natural or artificial shelter appropriate to the local climatic conditions for the species concerned shall be provided for all animals kept outdoors to afford them protection and to prevent discomfort to such animals. . . .
(c) Drainage. A suitable method shall be provided to rapidly eliminate excess water. . . .(9 C.F.R. § 3.127(b), (c).)
. . . .
§ 3.130 Watering.
If potable water is not accessible to the animals at all times, it must be provided as often as necessary for the health and comfort of the animal. Frequency of watering shall consider age, species, condition, size, and type of the animal. All water receptacles shall be kept clean and sanitary. (9 C.F.R. § 3.130.)
. . . .
§ 3.131 Sanitation.
(a) Cleaning of enclosures. Excreta shall be removed from primary enclosures as often as necessary to prevent contamination of *117 the animals contained therein and to minimize disease hazards and to reduce odors. When enclosures are cleaned by hosing or flushing, adequate measures shall be taken to protect the animals confined in such enclosures from being directly sprayed with the stream of water or wetted involuntarily.
. . . .
(c) Housekeeping. Premises (buildings and grounds) shall be kept clean and in good repair in order to protect the animals from injury and to facilitate the prescribed husbandry practices set forth in this subpart. Accumulations of trash shall be placed in designated areas and cleared as necessary to protect the health of the animals. (9 C.F.R. § 3.131(a), (c).)
Discussion
**7 Respondents Andrew Burr and Carol Burr own and manage Respondent Big Bear Farm, Inc., a zoo park located in Honesdale, Pennsylvania. (Answer, ¶ I.A.; CX-4, 13; Tr. 285, 337, 344-46, 399, 404-05.) One part is a traditional zoo which contains, among other animals, tigers, foxes, raccoons, donkeys, bears, rabbits, squirrels, monkeys, buffalo, a llama, and a zebra. The other part of the park is a petting zoo for children housing sheep, goats, potbellied pigs, and other domesticated animals. There are approximately 60 to 75 animals living on Big Bear Farm, Inc. (Tr. 347.) More than half the animals, including the bears and cats, were hand-raised by the Burrs. (Tr. 400.) In addition to the zoo animals, farm animals and personal pets not subject to the requirements of the Act also live on the premises. (Tr. 347.)
Respondent Andrew Burr has worked with and maintained exotic animals since 1954 when he operated a zoo on Long Island. (Tr. 285.) During his career, he has supplied animals for Shari Lewis, Steve Allen, and the Today show. Presently, the Burrs consider the operation of Big Bear Farm, Inc., to be more of a retirement hobby than a money-making venture, although they do charge an entry fee for admission to the park. (Tr. 336, 340.) Persons 12 years of age and over are charged $5.50, children from 5 years of age to 11 are charged $3.50, and children under 5 years of age are admitted to the park for free. (Tr. 336.) During the 1994 season, Respondent Big Bear Farm, Inc., grossed approximately $1,620; during the 1993 season, Respondent Big Bear Farm, Inc., grossed approximately $1,870. (Tr. 336.) Andrew Burr testified *118 that it costs between $15,000 and $16,000 a year to operate the park. (Tr. 349.) In order to obtain additional income, Andrew Burr works as a mover, does odd jobs, borrows money from his children, and rents the animals. (Tr. 349-51, 353-54.)
Andrew Burr was initially issued a license by USDA in 1989, but the name on the license was subsequently changed to and remains as Big Bear Farm, Inc. (CX-4, 13; Tr. 284-85, 344-45.)
From March 27, 1990, through February 9, 1993, Respondents' facility was inspected by five different APHIS employees on seven different occasions. Numerous violations of the Act, regulations, and standards were found. They are discussed below.Paragraphs III(A), IV(A), VI(A), and VIII(A) of the Complaint allege that Respondents failed to maintain adequate records showing the acquisition, disposition, and identification of animals, as required by 7 U.S.C. § 2140 and 9 C.F.R. § 2.75(b)(1). Although the humane treatment of animals by dealers, exhibitors, and others is a principal concern of the Act, the law is also concerned with adequate recordkeeping: "Inventory records, which show births and deaths, are also an important indicator of the level of animal husbandry, basic care and veterinary care provided by exhibitors." In re Cecil Browning, 52 Agric. Dec. 129, 141 (1993), aff'd per curiam, 15 F.3d 1097 (11th Cir. 1994) (Table).
**8 The testimony of APHIS inspector Dr. O'Malley shows that Respondents failed to maintain proper records concerning a brown bear, a stump-tailed macaque, a silver fox, a European hedgehog, rabbits, a ringtail cat, and a rhesus macaque. (Tr. 66-67, 94, 115-17, 142; CX-2, p. 8; CX-3, p. 4; CX-7, p. 6; CX-12, p. 3.) However, Respondents' lack of adequate recordkeeping appears to be more of a misunderstanding than an attempt to deceive APHIS. For example, on September 30, 1991, Respondent Andrew Burr presented a document that he had prepared concerning the acquisition of a macaque monkey. (Tr. 307-08.) Dr. O'Malley said that the document needed to be prepared by the donor or seller of the animal and not by the person who bought the animal. Respondent Andrew Burr later obtained a document prepared by the seller in response to Dr. O'Malley's request. (Tr. 307-08; RX-5.) Nevertheless, each failure to maintain the required records constitutes a violation of 7 U.S.C. § 2140 and 9 C.F.R. § 2.75(b)(1).
Paragraphs IV(B)(4), V(B)(3), and VI(C)(5) of the Complaint allege that Respondents failed to develop, document, and follow an appropriate plan for environmental enhancement adequate to promote the psychological well-being of nonhuman primates, in violation of 9 C.F.R. §§ 2.100(a) and 3.81. On September 30, 1991, when APHIS inspected Respondents' facility, there was no *119 plan for the environmental enhancement of nonhuman primates. (CX-3, p. 4.) On May 7, 1992, and July 28, 1992, however, the inspectors noted that enrichment devices and toys were contained in the primates' cages, but found that no written plan approved by a veterinarian was available for review. (Tr. 128, 250, 261; CX-5, p. 3; CX-7, p. 7.) Respondent Andrew Burr explained that:
I do remember that Dr. O'Malley he had told me that I had better prepare some kind of a program of enhancement for the non-human primates because it was going to be law and upon his next visit, I made sure I had this thing ready and I showed it to him and he said that is no good. It can't be done by you. He neglected to tell me that it had to be done by somebody else. (Tr. 363-64.)
Andrew Burr described Respondents' "program" as follows:
We have put Fisher Price baby safe what they call busy boxes. They have little whistles on them and things that you turn and telephone things that you dial and handles that you pull and all of that kind of stuff there. They are totally child safe. You can't chew them and have any paint poison or anything like that on them. Then they have balls and swings and all kinds of things like that all kinds of toys. (Tr. 309-10.)
Dr. O'Malley testified:
I didn't see anything that was harmful or detrimental.
. . . .
. . . [T]he procedures that they were doing were all beneficial and they were taking place. (Tr. 105.)
Nevertheless, the regulations require a plan as directed by the attending veterinarian. Respondents obtained the required plan, which they made available for review by the inspectors on September 2, 1992. (Tr. 394-95; CX-8, p. 2; RX-4(b).) However, for the period of time that Respondents did not have a plan as directed by the attending veterinarian, Respondents were not in compliance with 9 C.F.R. §§ 2.100(a) and 3.81.
**9 *120 Paragraph IV(B)(2) of the Complaint alleges that on September 30, 1991, supplies of food and bedding were not stored so as to adequately protect them against deterioration, molding, or contamination by vermin, in violation of 9 C.F.R. §§ 2.100(a) and 3.125(c). An APHIS inspector inspected Big Bear Farm, Inc., on September 30, 1991, and found that bagels were stored on the ground in open bags or in a plastic container that was not leak-proof and did not have a tight-fitting lid. (CX-3, p. 2; Tr. 91, 94-95.) The record shows that just prior to the inspection, the bagels had been left by a local baker and that the violation was corrected at the time of inspection. (Tr. 95-96; CX-3, p. 2.) Nonetheless, on September 30, 1991, Respondents were, for some period of time, in violation of 9 C.F.R. §§ 2.100(a) and 3.125(c).
Paragraphs III(B)(3) and IV(B)(3) of the Complaint allege that on August 27, 1991, and September 30, 1991, respectively, Respondents failed to provide a suitable method to eliminate excess water rapidly from outdoor housing facilities for animals, in violation of 9 C.F.R. §§ 2.100(a) and 3.127(c). On an August 27, 1991, inspection of Big Bear Farm, Inc., two APHIS inspectors found an excess accumulation of algae in both the tiger and bear enclosures, indicating that there was no suitable method to eliminate water rapidly from those enclosures. (CX-2, p. 4; Tr. 76.) Similarly, during a September 30, 1991, inspection of Big Bear Farm, Inc., an APHIS inspector found an excess accumulation of algae in the bear enclosure. (Tr. 92, 97; CX-3, p. 2.)
Paragraph III(B)(4) of the Complaint alleges that sufficient shade was not provided to allow rabbits to protect themselves from the direct sunlight, in violation of 9 C.F.R. §§ 2.100(a) and 3.52(a). On an August 27, 1991, inspection of Big Bear Farm, Inc., two APHIS inspectors found that the shelter provided for rabbits kept outdoors was not sufficient to allow all rabbits to protect themselves from the direct sunlight. (Tr. 33, 191, 199; CX-2, p. 6.) Respondent Andrew Burr disputes the number of shelters available, but states that he built additional shelters after the inspection. (Tr. 375-76.)
Paragraphs III(B)(5), VI(C)(3), and VII(B)(2) of the Complaint allege that sufficient shelter was not provided to allow rabbits to remain dry during rain, in violation of 9 C.F.R. §§ 2.100(a) and 3.52(b). On August 27, 1991, two APHIS inspectors found that "3 houses are present now but more are needed to provide for shade (or something else to provide for shade/shelter) so that all the rabbits contain [sic] in that enclosure can get relief from the weather. . . ." (CX-2, p. 6.) Both APHIS inspectors testified that there was insufficient shelter for the rabbits, and one of the inspectors specifically stated that the shelter was not sufficient for the rabbits to remain dry during rain. (Tr. 76-78, 199.) *121 Respondent Andrew Burr disputes the number of shelters available, but states that he built additional shelters after the inspection. (Tr. 375-76.)
**10 During a July 28, 1992, inspection of Big Bear Farm, Inc., an APHIS inspector found that rabbits kept outdoors were not provided with access to shelter to allow them to remain dry during rain or snow. (Tr. 124; CX-7, p. 3.) Respondent Andrew Burr stated that there were barrels in rabbit pens to provide rabbits access to shelter, but acknowledges that he was told that there were not enough barrels for the number of rabbits. (Tr. 318.) Similarly, during a September 2, 1992, inspection of Big Bear Farm, Inc., two APHIS inspectors found that "there were 6 rabbits housed in an enclosure equipped with a shelter box that could reasonably be expected to accommodate 3-4 rabbits." (CX-8, p. 3; see also Tr. 134, 226.) The violation was corrected during the inspection. (Tr. 134; CX-8, p. 3.)
Paragraph III(B)(7) of the Complaint alleges that on August 27, 1991, water receptacles were not kept clean and sanitary, in violation of 9 C.F.R. §§ 2.100(a), 3.55, and 3.130. During an August 27, 1991, inspection of Big Bear Farm, Inc., two APHIS inspectors found that the "rabbit, tiger/goats & sheep watering receptacles had an accumulation of dirt and algae these need to be cleaned & kept clean and sanitary." (CX-2, p. 8; see also Tr. 79-82, 161- 62.) Respondent Andrew Burr denies that there was any algae in the drinking water, (Tr. 323-24), but states that "[t]here might have been a little on the edge and the side of the bucket because on a regular interval at least once a day Carol [Burr] goes around with a toilet brush and does all of the buckets." (Tr. 324, ll. 8-11.)
Paragraphs III(B)(8) and VII(B)(5) of the Complaint allege that on August 27, 1991, and September 2, 1992, respectively, primary enclosures were not kept clean, in violation of 9 C.F.R. §§ 2.100(a) and 3.131(a); paragraph VI(C)(6) of the Complaint alleges that on July 28, 1992, primary enclosures for rabbits were not kept clean and sanitized, in violation of 9 C.F.R. §§ 2.100(a) and 3.56(a); and paragraph VIII(C)(2) of the Complaint alleges that on February 9, 1993, primary enclosures were not kept clean, in violation of 9 C.F.R. §§ 2.100(a), 3.84(a), and 3.131(a).
On an August 27, 1991, inspection of Big Bear Farm, Inc., two APHIS inspectors found that "[t]here was an (excess) accumalation [sic] of feces, hair, old food within the silver fox enclosure." (CX-2, p. 4; see also Tr. 83-84, 162-64.) On July 28, 1992, two APHIS inspectors found that "3 pens housing 10 rabbits had an accumulation of feces and straw several inches thick. Also excreta buildup inside shelter boxes in these pens was noted. In primary enclosures equipped with solid floors soiled litter shall be removed and replaced *122 with clean litter at least once each week (as per 9 CFR sec. 3.56a, 2). Currently soiled litter is removed and replaced approximately monthly." (CX-7, p. 5; see also Tr. 129-30.) On a September 2, 1992, inspection of Big Bear Farm, Inc., two APHIS inspectors found that "one pen housing 2 fallow deer had an accumulation of soiled bedding several inches thick," (Tr. 48, 138, 226; CX-8, p. 4; CX-9A and B); and during a February 9, 1993, inspection of Big Bear Farm, Inc., two APHIS inspectors found that the resting boards inside both the rhesus monkey and the arctic fox enclosures bore an accumulation of feces, bedding, and food waste which had been smeared into the boards. (Tr. 59-60, 149, 258, 428-29; CX-12, p. 3.) Similarly, the gray squirrel enclosure contained an accumulation of feces, food, feathers, and bedding material piled up to a height of 3-4 inches at one end of the cage, and covered the rest of the floor of the enclosure (excluding the shelter box) to a height of approximately one-half inch. (Tr. 58-59, 150, 251; CX-9(e); CX-9(f); CX-9(g); CX-12, p. 3.)
**11 Paragraphs III(B)(9) and IV(B)(5) of the Complaint allege that on August 27, 1991, and September 30, 1991, respectively, Respondents' premises (buildings and grounds) were not kept clean and in good repair and free from accumulations of trash, in violation of 9 C.F.R. §§ 2.100(a) and 3.131(c). On an August 27, 1991, inspection of Big Bear Farm, Inc., two APHIS inspectors found that the "(1) area behind/between bears/coyotes/foxes/raccoon enclosures--had an accumulation of brush & weeds which need to be removed/trimmed back. . . . (2) Refrigerator--(walk-in)--had an excess accumulation of old, isolated pieces of fruits/vegetables/bread on the floor this storage area needs to be kept clean & sanitary." (CX-2, p. 6; see also Tr. 84-86.) On September 30, 1991, an APHIS inspector found weeds and tall grass around the cages containing the fox pup and red fox. (Tr. 106-07; CX-3, p. 4.) Andrew Burr testified that he allowed the weeds to grow in order to provide shade for the animals. (Tr. 305-07.)
Paragraphs V(B)(2) and VI(C)(4) of the Complaint allege that on May 7, 1992, and July 28, 1992, respectively, animals kept outdoors were not provided with adequate shelter from inclement weather, in violation of 9 C.F.R. §§ 2.100(a) and 3.127(b). On a May 7, 1992, inspection of Big Bear Farm, Inc., two APHIS inspectors found that "the enclosure housing 2 fallow deer did not have adequate shelter from the elements. Plywood had been placed over the top and one wall of the enclosure which is constructed of wire mesh over a wood frame. Adequate shelter should consist of a roof and at least 3 sides of mater [sic] which shelters the animals from wind and rain." (CX-5, p. 2; see also Tr. 113, 167.) On a July 28, 1992, inspection of Big Bear Farm, Inc., two APHIS inspectors found that "the petting zoo enclosure housed 1 potbellied pig, 5 sheep *123 and 7 goats was equipped with 2 wood shelter boxes and 1 plastic barrel. There was not enough total shelter space to accomodate [sic] all animals housed in this enclosure at the same time." (CX-7, p. 3; see also Tr. 124-28.)
Paragraph VI(C)(2) of the Complaint alleges that on July 28, 1992, Respondents did not make provisions for removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards, in violation of 9 C.F.R. §§ 2.100(a) and 3.125(d). On a July 28, 1992, inspection of Big Bear Farm, Inc., two APHIS inspectors found that a "cart full of garbage was . . . in close proximity to an enclosure housing." (CX-7, p. 2; see also Tr. 122-24, 220, 315-16.) One of the inspectors testified that the cart did not have a lid, (Tr. 122), and Respondent Andrew Burr testified that the cart is used to load food waste and that after Respondents were cited for the violation, they purchased a tarpaulin and keep the cart covered at all times, except to load it. (Tr. 315-16.)
Paragraphs V(A), VI(B), VII(A), and VIII(B) of the Complaint allege that on May 7, 1992, July 28, 1992, September 2, 1992, and February 9, 1993, respectively, Respondents failed to provide veterinary care to animals in need of such care. On the May 7, 1992, inspection of Big Bear Farm, Inc., two APHIS inspectors found that:
**12 #48 Veterinary Care Sec. 2.40.
On 5/7/92 the following animals were noted to be in need of attention:
(1) Juvenile Brown Bear had an approximately 1 inch diameter swelling on its muzzle. This animal should be examined by the attending veterinarian;
(2) The yak's hooves were overgrown and in need of trimming. (CX-5, p. 2; see also Tr. 108-13, 247.)
The record clearly indicates that after the May 7, 1992, inspection, Respondents did have the bear's nose examined and that on the next subsequent inspection the yak's hooves were not identified as in need of trimming. (RX-6; CX-7.) On July 28, 1992, APHIS inspectors observed a rabbit with hair loss and a 2-inch diameter swelling on its back. (Tr. 117-18; CX-7, p. 6.) Andrew Burr testified that after the July 28, 1992, inspection, a veterinarian prescribed some ointment to put on the swelling and told him to leave it there until it *124 matured, at which time he was to give it a quarter-inch lance. (Tr. 316-17.) When APHIS requested a letter from a veterinarian confirming this treatment, Respondents obtained a letter from a veterinarian detailing the rabbit's treatment. (Tr. 316-17, 387-90.) On September 2, 1992, two APHIS inspectors found that "one rabbit described in the July 28, 1992, inspection report has been treated for an abscess. While the initial lesion appears to be healing well, this rabbit has developed another fluctuant swelling approximately 1 1/2 inches in diameter on its back." (CX-8, p. 4; see also Tr. 48, 132, 229-30, 235-36.) On February 9, 1993, an arctic fox was found to have excessively dilated pupils. (Tr. 60, 143-45, 251, 258-59; CX-12, p. 3.) Andrew Burr and Carol Burr testified that the fox was going blind because of age, and that, when they took it to the veterinarian the next day, the doctor confirmed that the condition was due to age and that no treatment would be appropriate. (Tr. 321-22, 390-92, 402-03; RX-6(b).)
The failure to provide prompt veterinary care to an animal can constitute a serious threat to an animal's health. In this case, however, veterinary care was not deliberately withheld from the animals and it is not shown that Respondents made a practice of withholding necessary veterinary care from their animals. However, to the extent they did not provide veterinary care in four instances, Respondents were not in compliance with 9 C.F.R. § 2.40.
Paragraphs III(B)(1), IV(B)(1), and VII(B)(4) of the Complaint allege that on August 27, 1991, September 30, 1991, and September 2, 1992, respectively, Respondents' housing facilities for animals were not structurally sound and maintained in good repair so as to protect the animals from injury, to contain the animals, and to restrict the entrance of other animals, in violation of 9 C.F.R. §§ 2.100(a) and 3.125(a). On August 27, 1991, two APHIS inspectors found that Respondents' llama enclosure had "a 6-12 inch gap between the ground and bottom of fencing along gate way." (CX-2, p. 2; see also Tr. 32-33, 69.) Further, the APHIS inspectors found that on the "goats/sheep/ pig enclosure [a] 3-4 ft wide piece of fencing attached to primary fence, has begun to pull away exposing jagged edges." (CX-2, p. 4; see also Tr. 32-33, 69). The record shows further that, on September 30, 1991, gaps were found in the perimeter fencing behind the bobcat and tiger enclosures. (CX-3, p. 2; Tr. 94.) On September 2, 1992, Respondents also failed to maintain the pen housing the yak in good repair. (CX-8, p. 3.)
**13 Paragraphs II(1), V(B)(1), VI(C)(1), VII(B)(3), and VIII(C)(1) of the Complaint allege that on March 27, 1990, May 7, 1992, July 28, 1992, September 2, 1992, and February 9, 1993, respectively, Respondents' facility lacked a perimeter fence or equivalent safeguards necessary for the containment *125 of dangerous, carnivorous wild animals, in violation of 9 C.F.R. §§ 2.100(a) and 3.125(a). On March 27, 1990, an APHIS inspector found that "the perimeter fence [at Big Bear Farm, Inc.,] is presently under construction around the outside facility used to house the large cats. Presently, the bobcats are the only animals in outside enclosures." (CX-1, p. 2; see also Tr. 16, 18-20.) During the May 7, 1992, July 28, 1992, September 2, 1992, and February 9, 1993, inspections of Big Bear Farm, Inc., APHIS inspectors found the perimeter fence to still be incomplete, (CX-5, p. 3; CX-7, p. 7; CX-8, p. 3; CX-12, p. 2.)
Andrew Burr testified that prior to the first APHIS inspection and before he received his initial exhibitor's license, he had a discussion with Dr. Beasley, an animal care specialist with APHIS, concerning what was necessary for a perimeter barrier:
Dr. Beasley pretty much laid the format and ground rules for the building of the enclosures and also she told us that there had to be around the bear cages there had to be eight foot high. It was six foot high at first she told us and then she came back at a later date and told us that it had to be eight foot and I complained about it and she said well you can put two more feet of barbed wire on the top and make it eight foot and we did it just as she told us. (Tr. 287.)
Andrew Burr further testified: "We later on were told that we had to have a [perimeter] fence around the total compound which encompasses 125 acres." (Tr. 288.) Andrew Burr said that he began working on the perimeter fence "right then and there," but soon ran into trouble with the town supervisors, delaying the project. (Tr. 289.) Despite these extenuating circumstances, Respondents' failure to provide adequate perimeter fencing constitutes a violation of the standards. In re Patrick D. Hoctor, 54 Agric. Dec. 114 (1995), appeal docketed, No. 95-2571 (7th Cir. July 3, 1995).
Finally, on inspection visits conducted on March 27, 1990, August 27, 1991, September 30, 1991, May 7, 1992, July 28, 1992, and September 2, 1992, APHIS inspectors found violations of the Act, regulations, and standards and gave Respondents time to correct such violations. Respondents corrected many of the violations by the time of the next APHIS inspection. However, the record establishes that on each of seven inspections Respondents were not in compliance with the Act and the regulations and standards issued under the Act.
*126 Findings of Fact
1. Respondents Andrew Burr and Carol Burr are individuals whose mailing address is RD #3 Box 1352, Honesdale, Pennsylvania 18431.
2. Respondents are owners and managers of Big Bear Farm, Inc., a Pennsylvania corporation operating from the same address.
**14 3. At all times material herein, Respondent Big Bear Farm, Inc., was licensed and operating as an exhibitor as defined in the Act and the regulations.
4. On [August 27, 1991,] September 30, 1991, [July 28, 1992,] and February 9, 1993, Respondents failed to maintain complete records showing the acquisition, disposition, and identification of animals.
5. On September 30, 1991, May 7, 1992, and July 28, 1992, Respondents failed to develop, document, and follow an appropriate plan for environmental enhancement adequate to promote the psychological well-being of nonhuman primates.
6. On [August 27, 1991, and] September 30, 1991, Respondents failed to provide a suitable method to eliminate excess water rapidly from outdoor housing facilities for animals.
7. On [August 27, 1991, and] September 30, 1991, . . . Respondents failed to keep [their] premises (buildings and grounds) clean and free of accumulations of trash.
8. On [May 7, 1992,] July 28, 1992, September 2, 1992, and February 9, 1993, Respondents failed to provide veterinary care to animals in need of care.
9. On [August 27, 1991,] September 30, 1991, and September 2, 1992, Respondents' housing facilities for animals were not structurally sound and maintained in good repair so as to protect the animals from injury, and to contain the animals. . . .
10. On [March 27, 1990,] May 7, 1992, July 28, 1992, September 2, 1992, and February [9], 1993, Respondents' facility was not constructed in a manner appropriate for the animals involved, in that it lacked a suitable perimeter fence or equivalent safeguards necessary for the safe containment of dangerous, carnivorous wild animals.
11. On [August 27, 1991, July 28, 1992,] September 2, 1992, [and February 9, 1993,] Respondents failed to keep primary enclosures clean.
[12.On September 30, 1991, Respondents failed to store food in facilities that adequately protect such food against deterioration, molding, or contamination by vermin.
*127 [13.On August 27, 1991, Respondents failed to provide sufficient shade to allow all rabbits kept outdoors to protect themselves from the direct rays of the sun.
[14.On August 27, 1991, July 28, 1992, and September 2, 1992, Respondents failed to provide rabbits kept outdoors with access to shelter to allow them to remain dry during rain or snow.
[15.On August 27, 1991, Respondents failed to keep water receptacles clean and sanitary, and failed to sanitize water receptacles when dirty.
[16.On May 7, 1992, and July 28, 1992, Respondents failed to provide animals kept outdoors with adequate shelter from inclement weather.
[17.On July 28, 1992, Respondents failed to provide for removal and disposal of food waste so as to minimize vermin infestation, odors, and disease hazards.]
Conclusions of Law
1. On [August 27, 1991,] September 30, 1991, [July 28, 1992,] and February 9, 1993, Respondents violated . . . 7 U.S.C. § 2140 and . . . 9 C.F.R. § 2.75(b)(1) by failing to maintain complete records showing the acquisition, disposition, and identification of animals.
**15 2. On September 30, 1991, May 7, 1992, and July 28, 1992, Respondents violated . . . [9 C.F.R. §§] 2.100(a) and 3.81 by failing to develop, document, and follow an appropriate plan for environmental enhancement adequate to promote the psychological well-being of nonhuman primates.
3. On [August 27, 1991, and] September 30, 1991, Respondents violated . . . [9 C.F.R. §§] 2.100(a) and 3.127(c) by failing to provide a method to eliminate excess water rapidly from outdoor housing facilities for animals.
4. On September 30, 1991, Respondents violated . . . [9 C.F.R. §§] 2.100(a) and 3.131(c) [by failing to keep grounds clean;] on [August 27, 1991, and] September 2, 1992, Respondents violated . . . [9 C.F.R. §§] 2.100(a) and 3.131(a) [by failing to keep primary enclosures clean;] on [August 27, 1991, Respondents violated . . . 9 C.F.R. §§ 2.100(a) and 3.131(c) by failing to keep the buildings and grounds clean and free of accumulations of trash; on July 28, 1992, Respondents violated 9 C.F.R. §§ 2.100(a) and 3.56(a) by failing to keep primary enclosures for rabbits clean;] and on February 9, 1993, Respondents violated 9 C.F.R. §§ 2.100(a), 3.84(a), and 3.131[(a) by failing to keep primary enclosures clean.]
*128 5. On [May 7, 1992,] July 28, 1992, September 2, 1992, and February 9, 1993, Respondents violated . . . [9 C.F.R. §] 2.40 by failing to provide veterinary care to animals in need of such care.
6. On [August 27, 1991,] September 30, 1991, and September 2, 1992, Respondents violated . . . [9 C.F.R. §§] 2.100(a) and 3.125(a) by failing to [provide] structurally sound housing facilities for animals [and failing to maintain such facilities] in good repair so as to protect the animals from injury and to contain the animals.
7. On [March 27, 1990,] May 7, 1992, July 28, 1992, September 2, 1992, and February 9, 1993, Respondents violated . . . [9 C.F.R. §§] 2.100(a) and 3.125(a) by failing to erect a suitable perimeter fence or have equivalent safeguards necessary for the safe containment of dangerous, carnivorous wild animals.
[8.On September 30, 1991, Respondents violated 9 C.F.R. §§ 2.100(a) and 3.125(c) by failing to store food in facilities which adequately protected such food against deterioration, molding, or contamination by vermin.
[9.On August 27, 1991, Respondents violated 9 C.F.R. §§ 2.100(a) and 3.52(a) by failing to provide sufficient shade to allow rabbits kept outdoors to protect themselves from the direct rays of the sun.
[10.On August 27, 1991, July 28, 1992, and September 2, 1992, Respondents violated 9 C.F.R. §§ 2.100(a) and 3.52(b) by failing to provide sufficient shelter to allow rabbits kept outdoors to remain dry during rain or snow.
[11.On August 27, 1991, Respondents violated 9 C.F.R. §§ 2.100(a) and 3.55 by failing to sanitize watering receptacles when dirty, and 9 C.F.R. §§ 2.100(a) and 3.130 by failing to keep water receptacles clean and sanitary.
[12.On May 7, 1992, and July 28, 1992, Respondents violated 9 C.F.R. §§ 2.100(a) and 3.127(b) by failing to provide animals kept outdoors with adequate shelter from inclement weather.
**16 [13.On July 28, 1992, Respondents violated 9 C.F.R. §§ 2.100(a) and 3.125(d) by failing to make provision for the removal and disposal of food waste so as to minimize vermin infestation, odors, and disease hazards.]
Issues Raised By Respondents on Appeal to the Judicial Officer
Respondents raise six issues on appeal. First, Respondents contend that:
The violations found by the [ALJ] under Conclusions of Law numbers 1 through 4, 6 and 7, were incorrect in that Complainant is *129 estopped from charging the particular violations involved due to its previous admission through correspondence that these violations did not exist (see Respondents pre-marked Exhibit No. 10). By affirmatively stating that only certain violations existed at the time such letters were promulgated, the Department is precluded from raising violations at a later time which should have been recognized at the time of correspondence. (Respondents' Appeal of Decision of Administrative Law Judge, p. 1), (hereafter RA).
Respondents did not introduce Respondents' Exhibit No. 10 and no such exhibit was admitted into evidence. However, I infer from the record, (Tr. 325-30; RA, p. 1; and RX-11(a) and RX-11(b)), that Respondents' reference in their appeal to "Respondents' pre-marked Exhibit No. 10" is in error, [FN4] and that Respondents meant to refer to: (1) a 2-page letter from Dr. Valencia D. Colleton, Northeast Sector Supervisor, REAC-Animal Care, APHIS, USDA, to Andrew and Carol Burr, Owners, Big Bear Farm, Inc., dated December 15, 1992, (RX-11(a)), which has been admitted into evidence; and (2) a 1-page letter from Dr. Colleton to Andrew and Carol Burr, dated January 15, 1993, (RX-11(b)), which has been admitted into evidence.
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. The record does not show that Respondents acted to their detriment based on the fact that the two letters in question from the Complainant, RX-11(a) and RX-11(b), did not cite all the violations either alleged in the Complaint, or found by the ALJ in the Initial Decision and Order. Therefore, there is no factual basis for estoppel in this case.
*130 Further, even if Respondents had acted to their detriment based on the letters in question, RX-11(a) and RX-11(b), 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.
**17 Finally, RX-11(a) and RX-11(b) neither admit that the violations alleged in the Complaint and later found by the ALJ, (Initial Decision and Order, pp. 14-15), do not exist, nor affirmatively state that only "certain violations existed at the time such letters were promulgated," as Respondents contend. (RA, p. 1.)
RX-11(a) and RX-11(b) were dated December 15, 1992, and January 15, 1993, respectively, and obviously cannot constitute an admission that violations did not occur on February 9, 1993, (25 days after the date of the latter letter). Further, by their terms, RX-11(a) and RX-11(b) specifically relate to violations revealed on inspection of Big Bear Farm, Inc., on May 7, 1992, July 28, 1992, *131 and September 2, 1992. Therefore, the letters cannot operate as an admission that violations did not occur on March 27, 1990, August 27, 1991, September 30, 1991, and February 9, 1993. Moreover, RX-11(a) and RX-11(b) do not in any way indicate that violations other than those cited in the letters had not been found, and they provide no basis for finding the ALJ's Conclusions of Law in error.
Second, Respondents contend that:
The violations found in Conclusion of Law No. 7 should be dismissed as they pertain to a perimeter fence, the basis of which has been ruled as unenforceable in the case of In re: Patrick D. Hocktor [sic], AWA Docket No. 93-10, 9 C.F.R. Section 3.125. (RA, pp. 1-2.)
The ALJ found in Conclusion of Law 7 that: "On May 7, 1992, July 28, 1992, September 2, 1992, and February 9, 1993, Respondents violated section 2.100(a) of the regulations and section 3.125(a) of the standards, by failing to erect a suitable perimeter fence or equivalent safeguard necessary for the safe containment of dangerous, carnivorous wild animals." (Initial Decision and Order, p. 15.)
9 C.F.R. § 3.125(a) provides:
(a) Structural strength. The facility must be constructed of such material and of such strength as appropriate for the animals involved. The indoor and outdoor housing facilities shall be structurally sound and shall be maintained in good repair to protect the animals from injury and to contain the animals.
APHIS has, by memorandum, interpreted this structural strength standard to require a perimeter fence that is capable of containing wild and dangerous animals, (such as some of those kept by Respondents), and of preventing intrusion by unauthorized humans, predators, and small mammals which can carry diseases.
Respondents base their argument for dismissal of the ALJ's Conclusion of Law No. 7 on an Initial Decision and Order issued in In re Patrick D. Hoctor, in which an ALJ found that the perimeter fence requirement is a substantive rule which is invalid because it was not published in the Federal Register. The ALJ's Initial Decision and Order in In re Patrick D. Hoctor, as to the enforceability of the perimeter fence requirement, was reversed. In re Patrick *132 D. Hoctor, 54 Agric. Dec. 114 (1995), appeal docketed, No. 95-2571 (7th Cir. July 3, 1995). The Department has consistently interpreted 9 C.F.R. § 3.125(a) to require dealers and exhibitors to erect an appropriate perimeter fence for some types of animals in appropriate circumstances. In re Patrick D. Hoctor, supra, 54 Agric. Dec. at 124. See also In re Cecil Browning, 52 Agric. Dec. 129, 132, 143-44 (1993), aff'd per curiam, 15 F.3d 1097 (11th Cir. 1994) (Table); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1059 (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)). In re Gus White, 49 Agric. Dec. 123, 129, 134, 139, 146-47 (1990). The Initial Decision and Order in In re Patrick D. Hoctor provides no basis for finding the ALJ's Conclusion of Law No. 7 in this case in error.
**18 Third, Respondents contend that:
The [ALJ] erred in failing to dismiss the Complaint in its entirety in that the Complaint, as drafted, did not provide adequate notice of the specific activities claimed to be in violation of the regulations. Instead, the Complaint simply cites the regulation in question, and claims an alleged violation, without any factual allegations therein, which does not provide Respondents with an opportunity to defend and adequately prepare against the charges. See, USDA Complaint. (RA, p. 2.)
It is well settled that the formalities of court pleading are not applicable in administrative proceedings. Wallace Corp. v. NLRB, 323 U.S. 248, 253 (1944); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 142-44 (1940). Due process is satisfied when the litigant is reasonably apprised of the issues in controversy. In re Pet Paradise, Inc., supra, 51 Agric. Dec. at 1066; In re Dr. John H. Collins, 46 Agric. Dec. 217, 233 n. 8 (1987). It is only necessary that the Complainant in an administrative proceeding reasonably apprise the litigant of the issues in controversy; any such notice is adequate and satisfies due process in the absence of a showing that some party was misled. [FN5]
*133 Respondents contend that the Complaint filed in the instant case simply cites the regulations alleged to have been violated and does not set forth factual allegations regarding those violations. There is no basis for Respondents' contention. The Complaint clearly states the nature of the proceeding and identifies the Complainant and Respondents, the legal authority and jurisdiction under which the proceeding was instituted, and the nature of the relief sought. Each violation alleged in the Complaint states the date of the alleged violation, the issue in controversy, and the statute and, or, regulation violated. (Complaint.) The Complaint filed in this case fully apprised Respondents of the issues in controversy, satisfies due process, and complies with the applicable Rules of Practice, 7 C.F.R. § 1.135, [FN6] and there is nothing in the record to indicate that Respondents were misled by the Complaint.
Fourth, Respondents contend that:
The [ALJ] erred in finding violations based upon testimony which was not subject to cross examination, in particular, the submission of investigation reports which were accepted by the court as substantive evidence in the case. A review of the record indicates that on the few occasions where the witness was able to testify as to the specific nature of the violation (as opposed to relying solely upon a report), *134 those allegations were dismissed after being subject to cross examination. For example, Paragraph III.B.10. of the Complaint turned out to be the presence of a rodent within the confines of the facility, with the witness admitting that any animal, even a field mouse, would cause him to write up a violation, Count IV.B.2., which turned out to be a bag of bagels that had just been dropped off by a friend, another allegation based upon the existence of a spider web in a barn, and another based upon a lid sitting next to a barrel which was corrected in one second by placing the lid on top. (The specific complaint numbers of the last two violations cannot be ascertained due to the deficiencies in the Complaint as outlined above.) The fact that an inspector noted a violation in a report is not substantive evidence of the violation, and all findings based upon such documents without testimony subject to cross examination should be dismissed. (RA, p. 2.)
**19 Each of the violations alleged in the Complaint was based, in part, on inspection reports prepared on the date of inspection by the APHIS inspectors who conducted the inspections. [FN7] All of the inspectors who prepared those inspection reports were called as witnesses by the Complainant and, as Respondents contend, many of the inspectors had no present recollection, at the *135 time of their testimony at the hearing, of all of the findings reflected on their respective inspection reports. [FN8]
Respondents did not object to the admission into evidence of the inspection report prepared by APHIS inspector Stephen Smith on March 27, 1990, in which he recorded his observations upon which the violation alleged in Count II of the Complaint is based, (CX-1), and, therefore, Respondents are not in a position to complain now. In re Gary Edwards, 54 Agric. Dec. 348, 352 (1995); In re Albert Lee Rowland, 40 Agric. Dec. 1934, 1942 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983). The applicable Rules of Practice provide that:
(2) Objections. (i) If a party objects to the admission of any evidence . . ., the party shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the Judge.
(ii) Only objections made before the Judge may subsequently be relied upon in the proceeding. (7 C.F.R. § 1.141(g)(2)(ii) (1995).)
Respondents did, however, object to the admission of all the other inspection reports, CX-2, CX-3, CX-5, CX-7, CX-8, and CX-12. (Tr. 40, 43, 51, 64.) However, Respondents' contention that the evidence in those reports cannot be admitted and constitute the basis for a finding of a violation of the Act and regulations and standards issued under the Act is rejected. Contrary to Respondents' contention, administrative agencies are not barred from reliance *136 on hearsay evidence. See, e.g., Richardson v. Perales, 402 U.S. 389, 405-06 (1971). Such evidence need only bear satisfactory indicia of reliability, Hoska v. United States Dep't of the Army, 677 F.2d 131, 138-39 (D.C. Cir. 1982), and can constitute substantial evidence if reliable and trustworthy. Crawford v. USDA, 50 F.3d 46, 49 (D.C. Cir.), cert. denied, 116 S.Ct. 88 (1995); Williams v. United States Dep't of Transp., 781 F.2d 1573, 1578 n.7 (11th Cir. 1986); Johnson v. United States, 628 F.2d 187, 190-91 (D.C. Cir. 1980). Responsible hearsay has long been admitted in the Department's administrative proceedings. [FN9] Past recollection recorded is considered reliable, probative, and substantial evidence and fulfills the requirements of the Administrative Procedure Act, (5 U.S.C. § 556(d)), if made while the events recorded were fresh in the witnesses' minds. In re Gary Edwards, supra, 54 Agric. Dec. at 351-52; In re Bill Young, 53 Agric. Dec. 1232, 1253 (1994), rev'd, 53 F.3d 728 (5th Cir. 1995) (2-1 decision); In re Eddie C. Tuck (Decision as to Eddie C. Tuck), 53 Agric. Dec. 261, 284 (1994), appeal voluntarily dismissed, No. 94-1887 (4th Cir. Oct. 6, 1994); In re Jack Kelly, 52 Agric. Dec. 1278, 1300 (1993), appeal dismissed, 38 F.3d 999 (8th Cir. 1994); In re Charles Sims, 52 Agric. Dec. 1243, 1264 (1993); In re Cecil Jordan (Decision as to Sheryl Crawford), 52 Agric. Dec. 1214, 1236 (1993), aff'd, 50 F.3d 46 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 88 (1995). The inspection reports at issue were prepared contemporaneously with the observations made by the inspectors. All of the inspection reports reflect thoroughness. All of the inspectors who prepared the reports testified at the hearing and had some recollection of some of the findings contained in the reports. All of the inspectors who prepared the inspection reports were subject to cross-examination by Respondents who had an opportunity to challenge the reliability of the factual findings contained in the inspection reports. Accordingly, the inspection reports in question were properly admitted and relied on in this case.
**20 Fifth, Respondents contend that:
*137 The [ALJ] erred in failing to dismiss all allegations based upon the annual renewal of Respondents' license pursuant to the language of Regulation 2.3(a), which evidences the fact that Complainant found no legitimate violations in that the license was continually renewed. It should be noted that none of the legal arguments raised in items 1 through 5 above, although raised at the hearing, were addressed by the [ALJ] in his decision and Order. (RA, pp. 2-3.)
The annual renewal of Respondents' license under the Act is not evidence that Respondents complied with the Act and the regulations and standards issued under the Act. Section 2.3(a) of the regulations provides that:
(a) Each applicant must demonstrate that his or her premises and any animals, facilities, vehicles, equipment, or other premises used or intended for use in the business comply with the regulations and standards set forth in parts 2 and 3 of this subchapter. Each applicant for an initial license or license renewal must make his or her animals, premises, facilities, vehicles, equipment, other premises, and records available for inspection during business hours and at other times mutually agreeable to the applicant and APHIS, to ascertain the applicant's compliance with the standards and regulations. (9 C.F.R. § 2.3(a).)
I find no language in 9 C.F.R. § 2.3(a) that suggests, as Respondents contend, that license renewal evidences that Respondents did not violate the Act, and the regulations and standards issued under the Act. Even if an inspection were conducted as a prerequisite to each annual renewal of Respondents' license and no violations were found on the date of those renewal inspections, Respondents' compliance at the time of those annual renewal inspections would not constitute a basis for dismissal of alleged violations which are based upon inspections conducted on other occasions.
Sixth, Respondents contend that:
The [ALJ] erred in finding violations and [imposing] sanctions of any nature whatsoever [because the violations were not willful]. (RA, p. 5.)
Respondents cite the ALJ's discussion in his Initial Decision and Order in which he stated, inter alia, that recordkeeping deficiencies appear to be "more *138 of a misunderstanding than an attempt to deceive APHIS" (Initial Decision and Order, p. 4); that, with respect to Respondents' efforts to provide nonhuman primates with an environment to promote psychological well-being, "the procedures that [Respondents followed] . . . were all beneficial and . . . taking place" (Initial Decision and Order, p. 6, quoting testimony of Dr. O'Malley); that, with respect to housekeeping procedures, "the record does not show that Respondents deliberately mistreated their animals" (Initial Decision and Order, p. 7); that, with respect to veterinary care, "veterinary care was not deliberately withheld from the animals and it is not shown that Respondents made a practice of withholding necessary veterinary care from their animals" (Initial Decision and Order, p. 9); and that, with respect to the perimeter fence, Respondents received conflicting advice with respect to what was required (Initial Decision and Order, p. 10).
**21 I agree with the ALJ that Respondents willfully violated the Act and the regulations and standards issued under the Act. An action is willful under the Administrative Procedure Act, (5 U.S.C. § 558(c)), if a prohibited act is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. Cox v. USDA, 925 F.2d 1102, 1105 (8th Cir. 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 Julian J. Toney, 54 Agric. Dec. ___, slip op. at 53-54 (Dec. 5, 1995); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1284 (1988); In re David Sabo, 47 Agric. Dec. 549, 554 (1988). [FN10] 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 *139 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."')
Respondents' facility was inspected seven times by five inspectors over the course of almost 3 years and on each occasion violations were found. While Respondents corrected some of the violations either immediately or by the time of the next subsequent inspection, many of the same violations were repeated.
Respondents were fully aware of the applicable regulations and standards. Not only were the regulations and standards published in the Federal Register, thereby constructively notifying Respondents of those regulations and standards, FCIC v. Merrill, 332 U.S. 380, 385 (1947); Bennett v. Director, Office of Workers' Compensation Programs, 717 F.2d 1167, 1169 (7th Cir. 1983); Diamond Ring Ranch, Inc. v. Morton, 531 F.2d 1397, 1405 (10th Cir. 1976), but also Respondent Andrew Burr stated that he received the applicable regulations and standards approximately once a year. (Tr. 361-62; see also CX-4, CX-13.) Further, after each inspection, Respondents were provided with a copy of the inspection report which identified each violation observed by APHIS inspectors. (CX-1, CX-2, CX-3, CX-5, CX-7, CX-8, and CX-12.) Despite constructive and actual knowledge of the regulations and standards and full disclosure of the observations made by APHIS inspectors during each inspection, Respondents repeatedly violated the Act and the regulations and standards issued under the Act; thus, clearly supporting a finding that Respondents' violations were willful.
**22 Further, 7 U.S.C. § 2149(a) authorizes the suspension or revocation of a license of an exhibitor if the exhibitor has violated or is violating any provision of the Act or any regulation or standard promulgated by the Secretary under the Act. The only requirement is that at least one of the violations be willful. The existence of additional violations not shown to be willful does nothing to take away the Secretary's authority to suspend or revoke an exhibitor's license. Cox v. USDA, supra, 925 F.2d at 1105 n.10.
Finally, even if the Respondents had been able to show that none of their violations were willful, it would not support their contention that the ALJ erred in "assessing sanctions of any nature whatsoever."
The Act provides that:
*140 Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auc-tion sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. (7 U.S.C. § 2149(b).)
Thus, there is no requirement that the Secretary prove that the violations were willful in order to assess either a civil penalty or issue a cease and desist order under the Act.
Willfulness, therefore, is only relevant with respect to that part of the sanction that affects Respondent Big Bear, Inc.'s, license.
Further, in this case, even the suspension of Respondent Big Bear Farm, Inc.'s, license would be proper without proof of willfulness. The Act itself does not require proof of a willful violation in order to suspend or revoke a license. The requirement is in 5 U.S.C. § 558(c) which provides, in pertinent part, as follows:
Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given--
(1) notice by the agency in writing of the facts or conduct which may warrant the action; and
(2) opportunity to demonstrate or achieve compliance with all lawful requirements. (5 U.S.C. § 558(c).)
Willfulness need not be proven in proceedings under 5 U.S.C. § 558(c) to withdraw, suspend, revoke, or annul a license if the agency has given the licensee written notice that comports with 5 U.S.C. § 558(c)(1) and the licensee has had an opportunity to demonstrate or achieve compliance with lawful requirements as provided in 5 U.S.C. § 558(c)(2). The record clearly demonstrates that the Respondents were repeatedly notified in writing by APHIS of the facts that would warrant suspension of Respondent Big Bear, Inc.'s, license, and Respondents were repeatedly given an opportunity to achieve *141 compliance with the Act and the regulations and standards issued under the Act. [FN11]
**23 Respondents contend in their Response to Complainant's Appeal of Decision and Order and Opposition to Respondent's [sic] Appeal, (hereafter RRCA), that:
The amount of fines sought by the Department will effectively close down the facility in question. The Department admits the small scale nature of the operation in question, while at the same time requesting fines that are approximately five times the amount of the annual gross income of Big Bear Farms [sic]. The net effect of such a fine would be to forever close down the facility. Based upon the findings of the [ALJ] that any alleged violations were ones of omission rather than commission, and of negligence rather than wilful intent, and that none of the animals had been specifically harmed by the alleged violations, the relief sought is Draconian, and not proportionate to the types of violations alleged. (Emphasis in the original.) (RRCA, ¶ 2.)
Based upon the considerations required by the Act to be made regarding the appropriateness of the penalty, (7 U.S.C. § 2149(b)), the Department's sanction policy, and the facts in this case, I did not assess Respondents Andrew Burr and Carol Burr the full civil penalty requested by the Complainant. The issues raised by Respondents in RRCA, ¶ 2 are addressed below under the heading "Sanction."
Issue Raised By Complainant on Appeal to the Judicial Officer
Complainant appeals the ALJ's dismissal of "27 violations alleged in the Complaint." (Complainant's Appeal of Decision and Order, Opposition to Respondent's [sic] Appeal, and Its Brief in Support Thereof, p. 8) (hereafter CA). Complainant believes that the ALJ dismissed 27 violations alleged in the *142 Complaint because Respondents corrected many of the violations by the time of the next APHIS inspection. (CA, p. 8, quoting the ALJ's Decision and Order, p. 11.) However, the ALJ's Decision and Order does not state that Respondents' subsequent correction of violations by the time of the next APHIS inspection is the basis for his dismissal. 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.
**24 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. Further, the record shows that many of the violations dismissed by the ALJ were not corrected by the next subsequent inspection. Therefore, Complainant may be under a misapprehension regarding the reason for the ALJ's dismissal of "27" alleged violations.
I infer from the ALJ's Decision and Order that the ALJ did not find that Complainant proved its case by a preponderance of the evidence with respect to those violations which he dismissed. As I stated above, I agree with all of the violations that the ALJ did find, and I further find that the record as a whole also shows Complainant carried its burden of proof by a preponderance of the evidence with respect to the violations alleged in paragraphs II(1); III(A); III(B)(1), with respect to violations of 9 C.F.R. §§ 2.100(a) and 3.125(a); III(B)(3); III(B)(4); III(B)(5); III(B)(7); III(B)(8); III(B)(9), with respect to violations of 9 C.F.R. §§ 2.100(a) and 3.131(c); IV(B)(2); V(A); V(B)(2); VI(A); VI(C)(2); VI(C)(3); VI(C)(4); VI(C)(6), with respect to violations of 9 C.F.R. §§ 2.100(a) and 3.56(a); and VII(B)(2) of the Complaint.
While the Complainant has a prima facie case with respect to the violations alleged in paragraphs III(B)(1), with respect to violations of 9 C.F.R. §§ 3.53(a) *143 and 3.80(a); III(B)(2); III(B)(9), with respect to a violation of 9 C.F.R. § 3.84(c); III(B)(10); IV(B)(1), with respect to violations of 9 C.F.R. §§ 3.53(a) and 3.80(a); IV(B)(5), with respect to a violation of 9 C.F.R. § 3.84(c); VI(C)(6), with respect to a violation of 9 C.F.R. § 3.56(b); VI(C)(7); and VII(B)(1) of the Complaint, I do not find that the evidence is strong enough to reverse the ALJ. Further, Complainant has not appealed the ALJ's dismissal of the violation alleged in paragraph III(B)(6) of the Complaint.
Sanction
As to the appropriate sanction, the Act provides:
§ 2149. Violations by licensees
(a) If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred.
(b) Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. . . . The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations. (7 U.S.C. § 2149(a), (b).)
**25 *144 The Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991), aff'd, 991 F.2d 803, 1993 WL 128889 (9th Cir. 1993) (not to be cited as precedent under 9th Circuit Rule 36- 3)]:
The 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.
While the annual gross revenue of Respondent Big Bear Farm, Inc., was under $2,000 in 1993 and 1994, (Tr. 336), the facility covers 125 acres, and by February of 1993, Respondents exhibited between 60 and 75 animals, (Tr. 347). The annual licensing fee regulations, (9 C.F.R. § 2.6), classify exhibitors by the number of animals exhibited. Under this scheme, Respondents' facility is considered fairly large. Thus, I conclude that Respondents operated at least a moderate-sized facility, and certainly one where the civil penalty requested by Complainant would be appropriate.
Respondents state that the "net effect" of the assessment of the civil penalty requested by Complainant, $9,000, "would be to forever close down [Big Bear Farm, Inc.]" (RRCA, ¶ 2.) The effect of the assessment of a civil penalty on the ability of the Respondents to continue to operate as exhibitors is not one of the criteria required to be examined under the Act, and I have not taken it into account in determining the amount of the civil penalty to assess Respondents Andrew Burr and Carol Burr. See generally In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1071 (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)) ("To [the four criteria in the Animal Welfare Act], the Judicial Officer once added a fifth, i.e., a requirement that consideration be given to Respondents' ability to pay civil penalties, but that has since been removed as a criterion, since the [Animal Welfare Act], unlike some other statutes, does not require it." [Footnote omitted]); In re Mr. & Mrs. Stan Kopunec, 52 Agric. Dec. 1016, 1023 (1993) ("[A]bility to pay is not a relevant consideration in Animal Welfare Act cases."); In re Jerome A. Johnson, 51 Agric. Dec. 209, 216 (1992) ( "Ability to pay is a relevant circumstance under a number of civil penalty provisions administered by this Department, e.g., 15 U.S.C. § 1825(b)(1); see also 7 U.S.C. §§ 193(b), 213(b), but since that statutory factor *145 is not specified in the Animal Welfare Act, it will not be considered in determining future civil penalties under the Animal Welfare Act.").
There is no evidence that Respondents deliberately mistreated the animals. However, Respondents repeatedly and willfully violated the Act and the regulations and standards issued under the Act. Many of the violations were serious and could have impaired the health of the animals.
**26 The Complainant could have sought $2,500 for each violation. [FN12] In light of the amount that Complainant could have requested and the number of violations and serious nature of many of the violations, the requested sanction of a civil penalty of $9,000, and of a 60-day suspension of Big Bear Farm, Inc.'s, license, is modest, not Draconian as Respondents contend. (RRCA, ¶ 2.)
Moreover, an examination of other cases brought by APHIS for similar violations reveals that civil penalties and suspension periods similar to those sought by Complainant in this case have been assessed in the past. See, e.g., In re Ronald D. DeBruin, 54 Agric. Dec. ___ (June 29, 1995) ($5,000 civil penalty and 30-day suspension of a license for 21 violations of the Act and regulations and standards issued under the Act); In re Patrick D. Hoctor, 54 Agric. Dec. 114 (1995) ($7,500 civil penalty and 40-day suspension of a license for "more than" 15 violations of the Act and regulations and standards issued under the Act), appeal docketed, No. 95-2571 (7th Cir. July 3, 1995); In re Tuffy Truesdell, 53 Agric. Dec. 1101 (1994) ($2,000 civil penalty and 60-day suspension of a license for numerous violations on four different dates over a 13-month period); In re James Petersen, 53 Agric. Dec. 80 (1994) ($5,000 civil penalty and 1-year license disqualification); In re Alex Pasternak, 52 Agric. Dec. 180 (1993) ($10,000 civil penalty and minimum 1-year license suspension); In re Dwight Carpenter, 51 Agric. Dec. 239 (1992) ($3,000 civil penalty and minimum 6-month license suspension); In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476 (1991) ($10,000 civil penalty and minimum 1-year license suspension), aff'd, 991 F.2d 803 (9th Cir.), 1993 WL 128889 (9th Cir. 1993) (not to be cited as precedent under 9th Circuit Rule 36-3).
*146 Nonetheless, considering the statutory criteria, the Department's sanction policy, the record regarding Respondents' correction of some violations and attempts to correct other violations, the number of violations alleged which I do not find Complainant proved by a preponderance of the evidence, and Complainant's recommendation regarding sanction, I believe a civil penalty of $6,750 and a suspension of 45 days is appropriate. [FN13] Finally, I believe that Respondents should be ordered to cease and desist from further violations.
For the foregoing reasons, the following Order should be issued.
Order
Paragraph I
Respondents Andrew Burr and Carol Burr, as the alter egos of Respondent Big Bear Farm, Inc., are jointly and severally assessed a civil penalty of $6,750. The penalty shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded within 120 days of service of this Order to:
Sharlene A. Deskins
United States Department of Agriculture
Office of the General Counsel
Room 2014 South Building
Washington, DC 20250-1400
**27 The certified check or money order should indicate that payment is in reference to AWA Docket No. 93-32.
Paragraph II
Respondent Big Bear Farm, Inc.'s, license under the Animal Welfare Act is hereby suspended for 45 days and thereafter until Respondents' facility is found by APHIS to be in compliance with the Act and the regulations and standards issued under the Act.
*147 Paragraph III
Respondents, their 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 under the Act, and in particular, shall cease and desist from:
1. Failing to maintain records of the acquisition, disposition, description, and identification of animals, as required;
2. Failing to develop, document, and follow an appropriate plan for environmental enhancement adequate to promote the psychological well-being of nonhuman primates;
3. Failing to provide for the rapid elimination of excess water from housing facilities for animals;
4. Failing to keep the premises (buildings and grounds) clean and in good repair and free of accumulations of trash;
5. Failing to provide adequate veterinary care to animals in need of such care;
6. Failing to construct and maintain housing facilities for animals so that they are structurally sound and in good repair in order to protect the animals from injury, and contain them securely;
7. Failing to erect a perimeter fence or other equivalent safeguards necessary for the safe containment of dangerous, carnivorous wild animals;
8. Failing to store food in facilities which adequately protect such food against deterioration, molding, or contamination by vermin;
9. Failing to provide sufficient shade to allow rabbits kept outdoors to protect themselves from the direct rays of the sun;
10. Failing to provide sufficient shelter to allow rabbits kept outdoors to remain dry during rain or snow;
11. Failing to sanitize water receptacles when dirty and failing to keep water receptacles clean and sanitary;
12. Failing to provide animals kept outdoors with adequate shelter from inclement weather;
13. Failing to make provision for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards; and
14. Failing to keep primary enclosures clean.
Paragraph II of this Order shall become effective on the 30th day after service of this Order on Respondents. Paragraph III of this Order shall become effective on the day after service of this Order on Respondents.
FN1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940, (7 U.S.C. §§ 450c-450g); Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1490 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994, (7 U.S.C. § 6912(a)(1)).
FN2 The ALJ found that Respondents violated 9 C.F.R. §§ 2.100(a), 3.84(a), and 3.131(c) on February 9, 1993. (Initial Decision and Order, p. 14.) Complainant did not allege that Respondents violated 9 C.F.R. § 3.131(c) on February 9, 1993, but instead alleged that Respondents violated 9 C.F.R. §§ 2.100(a), 3.84(a), and 3.131(a). (Paragraph VIII(C)(2) of the Complaint.) I infer that the ALJ's reference to 9 C.F.R. § 3.131(c) was in error and that the ALJ meant to reference 9 C.F.R. § 3.131(a).
FN3 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 Julian J. Toney, 54 Agric. Dec. ___, slip op. at 54 (Dec. 5, 1995); In re Otto Berosini, 54 Agric. Dec. ___, slip op. at 32 (Sept. 11, 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).
FN4 Respondents note that their appeal was prepared without benefit of the transcript. (RA, p. 1, n.1.)
FN5 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350-51 (1938); Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 261-62 (D.C. Cir. 1979); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1161 (5th Cir. 1977); L.G. Balfour Co. v. FTC, 442 F.2d 1, 19 (7th Cir. 1971); Bruhn's Freezer Meats v. USDA, 438 F.2d 1332, 1342 (8th Cir. 1971); Swift & Co. v. United States, 393 F.2d 247, 252-53 (7th Cir. 1968); Cella v. United States, 208 F.2d 783, 788-89 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954); American Newspaper Pub. Ass'n v. NLRB, 193 F.2d 782, 799-800 (7th Cir. 1951), cert. denied sub nom. International Typographical Union v. NLRB, 344 U.S. 816 (1952); Mansfield Journal Co. v. FCC, 180 F.2d 28, 36 (D.C. Cir. 1950); E.B. Muller & Co. v. FTC, 142 F.2d 511, 518-19 (6th Cir. 1944); A.E. Staley Mfg. Co. v. FTC, 135 F.2d 453, 454-55 (7th Cir. 1943); NLRB v. Pacific Gas & Elec. Co., 118 F.2d 780, 788 (9th Cir. 1941); In re James Petersen, 53 Agric. Dec. 80, 92 (1994); In re Pet Paradise, Inc., supra, 51 Agric. Dec. at 1066; In re SSG Boswell, II, 49 Agric. Dec. 210, 212 (1990); In re Floyd Stanley White, 47 Agric. Dec. 229, 264-65 (1988), aff'd per curiam, 865 F.2d 262, 1988 WL 133292 (6th Cir. 1988); In re Sterling Colo. Beef Co., 35 Agric. Dec. 1599, 1601 (1976) (ruling on certified questions), final decision, 39 Agric. Dec. 184 (1980), appeal dismissed, No. 80-1293 (10th Cir. Aug. 11, 1980); In re A.S. Holcomb, 35 Agric. Dec. 1165, 1173-74 (1976).
FN6 § 1.135 Contents of complaint.
A complaint filed pursuant to § 1.133(b) shall state briefly and clearly the nature of the proceeding, the identification of the complainant and the respondent, the legal authority and jurisdiction under which the proceeding is instituted, the allegations of fact and provisions of law which constitute a basis for the proceeding, and the nature of the relief sought. (7 C.F.R. § 1.135.)
FN7 CX-1: An inspection report prepared by an APHIS inspector, Mr. Stephen Smith, on the date of his inspection of Respondents' facility, March 27, 1990, in which he found the violation alleged in Count II of the Complaint. CX-2: An inspection report prepared by APHIS inspectors, Dr. James O'Malley and Ms. Jan Puzas, on the date of their inspection of Respondents' facility, August 27, 1991, in which they found the violations alleged in Count III.A., B.1-5, 7-10 of the Complaint. CX-3: An inspection report prepared by an APHIS inspector, Dr. O'Malley, on the date of his inspection of Respondents' facility, September 30, 1991, in which he found the violations alleged in Count IV of the Complaint. CX-5: An inspection report prepared by APHIS inspectors, Dr. O'Malley and Ms. Karla Wills, on the date of their inspection of Respondents' facility, May 7, 1992, in which they found the violations alleged in Count V of the Complaint. CX-7: An inspection report prepared by APHIS inspectors, Dr. O'Malley and Dr. Frances Miava Binkley, on the date of their inspection of Respondents' facility, July 28, 1992, in which they found the violations alleged in Count VI of the Complaint. CX-8: An inspection report prepared by APHIS inspectors, Drs. O'Malley and Binkley, on the date of their inspection of Respondents' facility, September 2, 1992, in which they found the violations alleged in Count VII of the Complaint. CX-12: An inspection report prepared by APHIS inspectors, Dr. O'Malley and Ms. Wills, on the date of their inspection of Respondents' facility, February 9, 1993, in which they found the violations alleged in Count VIII of the Complaint.
FN8 APHIS inspector Stephen Smith testified that he did remember the violation reflected in his inspection report (CX-1) and alleged in Count II of the Complaint. (Tr. 16.) APHIS inspector Dr. O'Malley testified that he had some recollection of some of the violations reflected in his inspection reports and that those reports refreshed his recollection with respect to some violations reflected in his inspection reports and alleged in Counts III-VIII of the Complaint. (Tr. 28-37, CX-2; Tr. 37-40, CX-3; Tr. 41-43, CX-5; Tr. 52-55, CX-7; Tr. 46-52, CX-8; Tr. 56-63, CX-12.) APHIS inspector Jan Puzas testified that she did have some recollection of the violations reflected in her inspection report and that the report refreshed her recollection with respect to some violations reflected in her inspection report and alleged in Count III of the Complaint. (Tr. 189-95, CX-2.) APHIS inspector Karla Wills testified that she had some recollection of some of the violations reflected in her inspection reports and that those reports refreshed her recollection with respect to some violations reflected in her inspection reports and alleged in Counts V and VIII of the Complaint. (Tr. 246-50, CX-5; Tr. 250-53, CX-12.) APHIS inspector Dr. Binkley testified that her inspection reports refreshed her recollection with respect to some of the violations reflected in her inspection reports and alleged in Counts VI and VII in the Complaint. (Tr. 217-25, CX-7; Tr. 225-27, CX-8.)
FN9 In re Jim Fobber, 55 Agric. Dec. ___, slip op. at 11 (Feb. 7, 1996); In re Dane O. Petty, 43 Agric. Dec. 1406, 1466 (1984), aff'd, No. 3-84-2200-R (N.D. Tex. June 5, 1986); In re De Graaf Dairies, Inc., 41 Agric. Dec. 388, 427 n.39 (1982), aff'd, No. 82-1157 (D.N.J. Jan. 24, 1983), aff'd mem., 725 F.2d 667 (3d Cir. 1983); In re Richard L. Thornton, 38 Agric. Dec. 1425, 1435 (Remand Order), final decision, 38 Agric. Dec. 1539 (1979); In re Maine Potato Growers, Inc., 34 Agric. Dec. 773, 791-92 (1975), aff'd, 540 F.2d 518 (1st Cir. 1976); In re Marvin Tragash Co., 33 Agric. Dec. 1884, 1894 (1974), aff'd, 524 F.2d 1255 (5th Cir. 1975).
FN10 The United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Tenth Circuit define the word "willfulness," as that word is used in 5 U.S.C. § 558(c), as an intentional misdeed or such gross neglect of a known duty as to be the equivalent of an intentional misdeed. Capital Produce Co. v. United States, 930 F.2d 1077, 1079 (4th Cir. 1991); Hutto Stockyard, Inc. v. USDA, 903 F.2d 299, 304 (4th Cir. 1990); Capitol Packing Co. v. United States, 350 F.2d 67, 78-79 (10th Cir. 1965). Even under this more stringent definition, many of Respondents' violations would still be found willful.
FN11 As stated above, Respondents had actual and constructive notice of the applicable regulations and standards. Further, after each inspection, Respondents were provided with a copy of the inspection report which identified each violation observed by APHIS inspectors. Nonetheless, Respondents continued to violate the regulations and standards under the Act, and, often, Respondents continued to engage in violations identical to those previously found by APHIS inspectors and reported to Respondents.
FN12 I found that Complainant proved its case by a preponderance of the evidence with respect to 36 paragraphs in the Complaint. Complainant could have sought and had assessed a maximum civil penalty of $2,500 for each paragraph in the Complaint that I found Respondents violated, for a total civil penalty of $90,000.
FN13 Based on the testimony of APHIS inspector Dr. O'Malley and the unique circumstances surrounding the violation, no part of the sanction is based on Respondents' September 30, 1991, violation of 9 C.F.R. §§ 2.100(a) and 3.125(c) alleged in paragraph IV(B)(2) of the Complaint.