UNITED STATES DEPARTMENT OF AGRICULTURE (U.S.D.A.)
IN RE: DONALD STUMBO, D/B/A STUMBO FARMS
43 Agric. Dec. 1079 (U.S.D.A.)
Imposition of $4,000 civil penalty was appropriate under 7 USCS § 2149(b) where respondent committed numerous, serious violations of Animal Welfare Act, respondent handled large number of animals, and violations continued after respondent was advised in writing of violations and given opportunity to correct them.
Decision by Donald A Campbell, Judicial Officer.
delivered the opinion of the court.
Opinion of the Court:
DECISION AND ORDER
This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. § 2131 et seq.), and the regulations and standards issued thereunder (9 CFR § 1.1 et seq.). On May 11, 1984, Administrative Law Judge John G. Liebert issued an initial decision and order directing respondent to cease and desist from violating the Act and regulations, assessing a civil penalty of $4,000, and suspending respondent's license for 120 days.
On June 11, 1984, respondent appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. §§ 556 and 557 (*1080 7 CFR § 2.35). [FNa] The case was referred to the Judicial Officer for decision on July 9, 1984.
Oral argument before the Judicial Officer, which is discretionary (7 U.S.C. § 1.145(d)), was requested by respondent, but is denied inasmuch as the issues are not novel or difficult, the case has been thoroughly briefed, and oral argument would seem to serve no useful purpose.
Based upon a careful consideration of the entire record, the initial decision and order is adopted as the final decision and order in this case, with minor editorial changes, except that the effective date of the order is changed in view of the appeal. Additional conclusions by the Judicial Officer follow Judge Liebert's conclusions.
ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
This is a disciplinary proceeding under the Animal Welfare Act (7 U.S.C. 2131 et seq., as amended), hereinafter referred to as the "Act", and the General Regulations and Standards issued by the Secretary of Agriculture pursuant to the Act (9 CFR Parts 2 and 3). This proceeding was instituted by a complaint filed by the Administrator, Animal and Plant Health Inspection Service, on September 23, 1982, alleging that respondent violated the "Act" in several particulars during 1981 and 1982. Respondent filed an answer on October 5, 1982, denying the allegations in the complaint and requesting an oral hearing.
The particular violations charged in the complaint are: [FN1]
(1) During the period 1974 to 1981 respondent violated § 2.125 of the General Regulations (9 CFR 2.1 et seq.) by listing on his several reports to the agency the name of Dr. K.L. Kiehle as "consulting veterinarian" when, in fact, such person was not a consulting veterinarian for respondent;
**2 (2) Respondent refused to permit the completion of an inspection by complainant's inspectors on February 23, 1982, by forceably preventing the taking of photographs of his facility in violation of Section 2146(a) of the "Act" and § 2.126 of the General Regulations (9 CFR 2.126];
*1081 (3) Respondent's facilities and manner of conducting operations, as disclosed in an inspection report on February 23, 1982, were found to be in violation of the Subpart A-Specifications for the Humane Handling, Care, Treatment and Transportation of Dogs (and Cats) in the Standards (9 CFR Part 3, § 3.1 et seq.);
(4) Respondent's facilities and method of operation were found to be in violation of the aforementioned Standards as disclosed in an inspection report on March 24, 1982.
Complainant seeks a sanction of (1) a suspension of respondent's license for a period of 120 days and thereafter until respondent demonstrates his compliance with the applicable Regulations and Standards; (2) the issuance of a cease and desist order to deter further violations; and (3) the assessment of a civil penalty in the amount of $4,000.
Oral hearing on this matter was held on June 14, 1983, in Rochester, New York, before Administrative Law Judge John G. Liebert. Complainant is represented in this proceeding by Donald A. Tracy, Esq., Office of the General Counsel, United States Department of Agriculture, and respondent represents himself. At the conclusion of the hearing the parties were given the opportunity to file proposed findings of fact and briefs.
Pertinent Statutory Provisions
(7 U.S.C. 2132 et seq.)
§ 2143. Humane standards for animals transported in commerce-Authority of Secretary to promulgate standards
(a) The Secretary shall promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors. Such standards shall include minimum requirements with respect to handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, including the appropriate use of anesthetic, analgesic or tranquilizing drugs, when such use would be proper in the opinion of the attending veterinarian of such research facilities, and separation by species when the Secretary finds such separation necessary for the humane handling, care, or treatment of animals.
§ 2146. Administration and enforcement by Secretary-Investigations and inspections
(a) The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer, exhibitor, *1082 intermediate handler, carrier, research facility, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter or any regulation or standard issued thereunder, and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and those records required to be kept pursuant to section 2140 of this title of any such dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale.
§ 2149. Violations by licensees-Temporary license suspension; notice and hearing; revocation
**3 (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.
Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal, considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order
(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 $1,000 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. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals. The Secretary shall give due consideration to the appropriateness of the penalty with *1083 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. Any such civil penalty may be compromised by the Secretary. Upon any failure to pay the penalty assessed by a final order under this section, the Secretary shall request the Attorney General to institute a civil action in a district court of the United States or other United States court for any district in which such person is found or resides or transacts business, to collect the penalty, and such court shall have jurisdiction to hear and decide any such action. Any person who knowingly fails to obey a cease and desist order made by the Secretary under this section shall be subject to a civil penalty of $500 for each offense, and each day during which such failure continues shall be deemed a separate offense.
Pertinent Provisions of the Regulations Applicable
(9 CFR Part 2)
§ 2.125 Information as to business; furnishing of by dealers, exhibitors, operators of auction sales, and research facilities.
**4 Each dealer, exhibitor, operator of an auction sale, and research facility shall furnish to any Veterinary Services representative, any information concerning the business of the dealer, exhibitor, operator of an auction sale, or research facility which may be requested by such representative in connection with the enforcement of the provisions of the Act, the regulations and the standards in this subchapter. Such information shall be furnished within such reasonable time as may be specified in the request for such information.
§ 2.126 Access and inspection of records and property.
Each dealer, exhibitor, operator of an auction sale, or research facility, shall, during ordinary business hours, permit Veterinary Services representatives, or other Federal officers or employees designated by the Secretary, to enter his place of business to examine records required to be kept by the Act and the regulations in this part, and to make copies of such records, and permit Veterinary Services representatives to enter his place of business, to inspect such facilities, property and animals as such representatives consider necessary to enforce the provisions of the Act, the regulations and the standards in this subchapter.
*1084 Pertinent Provisions of the Standards Applicable
(9 CFR Part 3)
§ 3.1 Facilities, general.
(a) Structural strength. Indoor and outdoor housing facilities for dogs or cats shall be structurally sound and shall be maintained in good repair, to protect the animals from injury, to contain the animals, and to restrict the entrance of other animals.
(b) Water and electric power. Reliable and adequate electric power, if required to comply with other provisions of this subpart, and adequate potable water shall be available.
(c) Storage. Supplies of food and bedding shall be stored in facilities which adequately protect such supplies against infestation or contamination by vermin. Refrigeration shall be provided for supplies of perishable food.
(d) Waste disposal. Provisions shall be made for the removal and disposal of animal and food wastes, bedding, dead animals, and debris. Disposal facilities shall be so provided and operated as to minimize vermin infestation, odors, and disease hazards.
(e) Washrooms and sinks. Facilities, such as washrooms, basins, or sinks, shall be provided to maintain cleanliness among animal caretakers.
§ 3.2 Facilities, indoor.
(a) Heating. Indoor housing facilities for dogs or cats shall be sufficiently heated when necessary to protect the dogs or cats from cold, and to provide for their health and comfort. The ambient temperature shall not be allowed to fall below 50° F. for dogs and cats not acclimated to lower temperatures.
(b) Ventilation. Indoor housing facilities for dogs or cats shall be adequately ventilated to provide for the health and comfort of the animals at all times. Such facilities shall be provided with fresh air either by means of windows, doors, vents, or air conditioning and shall be ventilated so as to minimize drafts, odors, and moisture condensation. Auxiliary ventilation, such as exhaust fans and vents or air conditioning, shall be provided when the ambient temperature is 85° F. or higher.
**5 (c) Lighting. Indoor housing facilities for dogs or cats shall have ample light, by natural or artificial means, or both, of good quality and well distributed. Such lighting shall provide uniformly distributed illumination of sufficient light intensity to permit routine inspection and cleaning during the entire working period. Primary enclosures shall be so placed as to protect the dogs or cats from excessive illumination.
*1085 (d) Interior surfaces. The interior building surfaces of indoor housing facilities shall be constructed and maintained so that they are substantially impervious to moisture and may be readily sanitized.
(e) Drainage. A suitable method shall be provided to rapidly eliminate excess water from indoor housing facilities. If drains are used, they shall be properly constructed and kept in good repair to avoid foul odors therefrom. If closed drainage systems are used, they shall be equipped with traps and so installed as to prevent any backup of sewage onto the floor of the room.
§ 3.4 Primary enclosures.
All primary enclosures for dogs and cats shall conform to the following requirements:
(a) General-(1) Requirements for primary enclosures for dogs and cats.
(i) Primary enclosures shall be structurally sound and maintained in good repair to protect the dogs and cats from injury, to contain them, and to keep predators out.
(ii) Primary enclosures shall be constructed and maintained so as to enable the dogs and cats to remain dry and clean.
(iii) Primary enclosures shall be constructed and maintained so that the dogs or cats contained therein have convenient access to clean food and water as required in this subpart.
(iv) The floors of the primary enclosures shall be constructed so as to protect the dogs' and cats' feet and legs from injury.
§ 3.5 Feeding.
(a) Dogs and cats shall be fed at least once each day except as otherwise might be required to provide adequate veterinary care. The food shall be free from contamination, wholesome, palatable, and of sufficient quantity and nutritive value to meet the normal daily requirements for the condition and size of the dog or cat.
(b) Food receptacles shall be accessible to all dogs or cats and shall be located so as to minimize contamination by excreta. Feeding pans shall be durable and kept clean. The food receptacles shall be sanitized at least once every 2 weeks. Disposable food receptacles may be used but must be discarded after each feeding. Self feeders may be used for the feeding of dry food and they shall be sanitized regularly to prevent molding, deterioration or caking of feed.
§ 3.6 Watering.
*1086 If potable water is not accessible to the dogs and cats at all times, potable liquids shall be offered to such animals at least twice daily for periods of not less than 1 hour, except as might otherwise be required to provide adequate veterinary care. Watering receptacles shall be kept clean and shall be sanitized at least once every 2 weeks.
§ 3.7 Sanitation.
**6 (a) Cleaning of primary enclosures. Excreta shall be removed from primary enclosures as often as necessary to prevent contamination of the dogs or cats contained therein and to reduce disease hazards and odors. When a hosing or flushing method is used for cleaning a primary enclosure commonly known as a cage, any dog contained therein shall be removed from such enclosure during the cleaning process, and adequate measures shall be taken to protect the animals in other such enclosures from being contaminated with water and other wastes.
(b) Sanitization of primary enclosures.
(1) Prior to the introduction of nonconditioned dogs or cats into empty primary enclosures previously occupied, such enclosures shall be sanitized in the manner provided in paragraph (b)(3) of this section.
(2) Primary enclosures for dogs or cats shall be sanitized often enough to prevent an accumulation of debris or excreta, or a disease hazard: Provided, however, That such enclosures shall be sanitized at least once every 2 weeks in the manner provided in paragraph (b)(3) of this section.
(3) Cages, rooms and hard-surfaced pens or runs 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. Pens or runs using gravel, sand, or dirt shall be sanitized by removing the soiled gravel, sand, or dirt and replacing it as necessary.
(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. Premises shall remain free of accumulations of trash.
(d) Pest control. An effective program for the control of insects, ectoparasites, and avian and mammalian pests shall be established and maintained.
§ 3.10 Veterinary care.
*1087 (a) Programs of disease control and prevention, euthanasia, and adequate veterinary care shall be established and maintained under the supervision and assistance of a doctor of veterinary medicine.
(b) Each dog and cat shall be observed daily by the animal caretaker in charge, or by someone under his direct supervision. Sick or diseased, injured, lame, or blind dogs or cats shall be provided with veterinary care or humanely disposed of unless such action is inconsistent with the research purposes for which such animal was obtained and is being held: Provided, however, That the provision shall not effect compliance with any State or local law requiring the holding, for a specified period, of animals suspected of being diseased.
§ 3.12 Primary enclosures used to transport live dogs and cats.
No dealer, research facility, exhibitor, or operator of an auction sale shall offer for transportation or transport, in commerce, any live dog or cat in a primary enclosure which does not conform to the following requirements:
**7 (d) A maximum of one live dog or cat, 6 months or more of age, or a maximum of one live puppy, 8 weeks to 6 months of age and weighing over 9 kilograms (20) pounds, shall be transported in a primary enclosure.
FINDINGS OF FACT
1. Respondent Donald Stumbo is an individual whose business address is O'Neal Road, Lima, New York 14485.
2. At all times material herein respondent had a Class B license issued under the Act. At the time of his original license application, May 28, 1967, and when reissued on May 1, 1982, respondent received a copy of the Regulations and Standards contained in Title 9, Chapter 1, Subchapter A of the Code of Federal Regulations and agreed in writing to comply with said Regulations and Standards.
3. Kay W. Wheeler, Doctor of Veterinary Medicine, is the Animal Health Technician employed by the Animal and Plant Health Inspection Service of the United States Department of Agriculture. He is an area official responsible for inspection of facilities of licensed dealers under the Act to police compliance within his *1088 area with the applicable Regulations and Standards issued by the Secretary of Agriculture. All of the charges herein are based upon reports of a series of investigations conducted by him of respondents operations, as more fully explained in the evidence presented at the hearing.
4. All of the charges herein concern the failure of respondent to conduct his operations and to maintain the condition of his facility in conformity with the Regulations and General Standards established pursuant to the Act. The following facts concerning his facility and operations are included to give clarity to the charges.
During the period since respondent was licensed and the date of the last investigation, March 24, 1982, respondent obtained the dogs he handled from the dog pounds in Genesee and Livingston counties. He transported them in his truck to his farm and placed them in his facility. His total facility was located in a metal barn 40 feet wide by 126 feet long. Respondent used only a portion of the interior area of the barn, about 24 feet long and 40 feet wide, for dogs. The remaining part was used for the housing of other livestock. Within the area set aside for the dog facility respondent had constructed a poured and finished cement floor on which he had erected several adjacent enclosures. These enclosures were simply pens constructed of galvinized wire and pipe with a door at one end opening onto a 4 foot alley-way, which surrounded the area on 2 sides, providing access to the pens. Three of the pens (according to respondents' brief) were ten feet by ten feet and six were four feet by ten feet in size. The fencing was approximately eight feet high.
The enclosures were in the area of the barn which is closest to an overhead door. There were no windows, lights or any heat in the facility. All animal refuse and debris had to be removed manually because there were no facilities for flushing out the pens or otherwise keeping them clean. Pine oil was the only disinfectant used by respondent.
**8 Usually only mature dogs of all types were obtained and there were no more than 2 to 5 dogs put in each pen. There is no evidence at all that any care was given to the dogs except food and water. Sometimes straw was placed on the floor as bedding. Food and water were provided in each pen in buckets. Dogs were usually held from 7 to 10 days before they were sold. Respondent testified that his principal outlet was the Rochester General Hospital which he supplied with about 20 dogs each week. In the event a dog became ill, or was for some reason unsaleable, respondent simply shot the dog and disposed of the carcass.
The specific charges about the deficiencies in respondent's operations and facility, including transportation methods, are discussed *1089 more fully in the analysis of the evidence relating to each of the specific charges in the Findings of Fact herein.
5. The first charge is that during the period 1974 to 1981 respondent violated § 2.125 of the General Regulations by giving to the agency the name of Dr. K.L. Kiehle as "Consulting Veterinarian" when, in fact, such person was not a consulting veterinarian for the respondent during this period.
The evidence is that, at the time of the investigation of respondent's facility by Dr. Wheeler, on December 2, 1980 (Exhibit 2), and April 7, 1981 (Exhibit 1), respondent gave him Dr. Kiehle's name as consulting veterinarian to conduct those activities set forth in the General Regulations and Standards (§ 2.125, 3.10(a)). Dr. Wheeler's testimony is that he conducted all of the investigations of respondent's facility after 1979 and that Dr. Kiehle's name was always given to him by respondent as the consulting veterinarian. He also testified that he had reviewed copies of reports of other investigations conducted between 1974 and 1979 and that such reports showed Dr. Kiehle as being the consulting veterinarian.
Dr. Kenneth L. Kiehle testified that he has never seen respondent's facility for dogs and that he did not at any time establish, maintain, or supervise a program of adequate veterinary care and disease control and prevention, or establish and maintain a euthanasia program in connection with respondent's facility for handling dogs. The substance of his testimony is that in 1967, at the time of respondent's application for a license under the Act, he was doing veterinary work on dairy and beef cattle and told respondent he could use his name as consulting veterinarian. This was prior to the time respondent engaged in the present operation of handling dogs under the Act. Dr. Kiehle further testified that he had never treated or was called upon to treat any of respondent's dogs.
Respondent's position is that he deemed his responsibilities under the Act were accomplished because Dr. Kiehle was a veterinarian, lived only six miles away, and would have been available if he had needed him. He stated that he did not need Dr. Kiehle's veterinary service during all of this period because he did whatever was necessary himself.
**9 Clearly, during this entire period from 1967 to 1982 respondent was not in compliance with the General Regulations and Standards because he literally had no veterinary attention for the maintenance of his operations as a licensee for the handling of dogs in the manner required.
6. In connection with the first charge Dr. Wheeler advised respondent on February 23, 1982 (Exhibit 5) that
*1090 "[A] program of veterinary care must be established and that this should be completely taken care of by March 1, 1982."
Respondent signed the investigation report and agreed to accomplish the establishment of a proper veterinary program by March 1, 1982.
The evidence contains a document signed by Dr. Quentin Llop, D.V.M., entitled "Program of Veterinary Care", dated March 10, 1982 [Exhibit 3]. Dr. Llop is a practitioner operating out of the Avon Animal Hospital in the Town of York. He testified that he was called sometime in January 1982 by respondent to come out to his facility and advise him with respect to the institution of a veterinary program. He did not, however, get out to the facility until March 10, 1982.
On April 15, 1983, Dr. Llop prepared a statement (Exhibit 4), addressed
"TO WHOM IT MAY CONCERN:
Between and including March 10, 1982 and April 11, 1983, I have visited Stumbo Farms, Hemlock NY numerous times. (At least once in each of May, June, July, August, October and December 1982.) I have always found that Mr. Don Stumbo practiced good animal husbandry and in particular responsible dog care.
I have arrived several times unannounced and have always found the dogs well bedded with adequate food and water.
I am available at the above address for further comment on this matter.
Quentin H. Llop"
7. Complainant's first charge is that respondent had not established an adequate veterinary program in accordance with the General Regulations and Standards by March 1, 1982, and had not had one previous to the time Dr. Llop was engaged. Neither the investigator nor the agency was notified of the Exhibit 3 until approximately one year later. The record does not analyze whether the program established and maintained by Dr. Llop was, or was not, in accordance with the Regulations and General Standards. However, Dr. Llop's direct testimony is that he is not familiar with the Regulations and General Standards issued pursuant to the Act, but that his program is directed to what he described as good husbandry and responsible dog care in accordance with the economic interests of respondent.
Other charges discussed herein arising out of an investigation as late as March 24, 1982 (Exhibit 7), relating to cleanliness of facilities, etc., raise serious questions about when any veterinary program *1091 was actually initiated by respondent and the quality of it. In any event, respondent did not notify the investigator or the agency that a program had been instituted. Moreover, the investigation of March 24, 1982, found no evidence of it, either in writing, or in the physical condition of respondent's facility which was substantially unchanged.
**10 On the basis of the foregoing Findings of Fact we find and conclude that respondent violated the General Regulations and Standards in the manner alleged in the first charge.
8. The second charge is that respondent refused to permit the completion of an inspection by complainant's inspectors on February 23, 1982, by forceably preventing the taking of photographs of his facility in violation of section 2146(a) of the Act and § 2.126 of the General Regulations.
On February 23, 1982, Dr. Wheeler conducted an inspection of respondent's facility. He was accompanied by Dr. Cecilia Sanz, who is an Area Animal Health Specialist for thirteen states which includes New York. She accompanied Dr. Wheeler as a routine matter to check the operation of the program. During the course of their inspection Dr. Sanz took a photograph of the facility with a polaroid camera. Respondent immediately objected and told her that he did not allow photographs to be taken on his premises. A little while later Dr. Sanz took another photograph of the facility and respondent rushed over to her, seized the photographs from her hand and attempted to tear them up. He did not succeed in that but crumpled the photos in her presence and put them in his pocket. He told the investigators in a belligerent way he did not permit anybody to take photographs on his property. Dr. Sanz testified that she explained the purposes of the photographs to no avail. She was very much intimidated by respondent's threatening action and took no further pictures.
The evidence discloses that on a previous inspection visit, on December 2, 1980 (Exhibit 2), Dr. Wheeler had asked to take a picture of the facility and respondent had advised him forcefully that no pictures were going to be taken. He threatened Dr. Wheeler if he attempted to do so.
Dr. Sanz testified that as a result of respondent's belligerency the inspection was not completed in as thorough a manner as it would have been. She testified that it was a customary practice for investigators to take photographs of facilities as a part of an inspection because they graphically illustrate, for the record and for future reference, the condition of facilities.
Respondent's position in testimony and on brief is that he does not permit anyone to take photographs on his property. He considers *1092 it a violation of his right of privacy and this prohibition includes the government. His brief clearly states that the agency inspectors have no right to take photographs of his facility as a part of their inspections and that he will not permit it.
It is clear from the foregoing that respondent challenged the authority of the inspectors to take photographs during the inspection. In this connection, we note that section 2146(a) of the Act provides that the Secretary shall make such inspections as he deems necessary to police compliance with the Regulations and Standards issued pursuant to the authority in Section 2143(a) of the Act. The conduct of an investigation is left to the investigator; however, it is evident from the detailed nature of the reports which an investigator is required to make that an investigation must be thorough. Sanctions for a licensee's non-compliance with Regulations and Standards are severe. It is in the best interest of licensees that facts be disclosed, so that the reason for a citation for non-compliance be self-evident and that corrective actions can be demonstrated.
**11 Photographs are a well-known and universal means of clearly depicting the condition of a facility. No better or non-controversial substitute has as yet been devised. And it is a method which agency investigators deem necessary to conduct a fair investigation. We find prevention of inspectors from taking photographs in a reasonable manner which would greatly enhance an inspection is an unwarranted interference with responsible officials in the conduct of their authorized activities. We find no violation of any rights of respondent in the taking of photographs of respondent's facility during the course of an authorized inspection. Accordingly, we find that the second charge is well supported on the evidence presented, and that respondent violated section 2146(a) of the Act and § 2.126 of the Regulations as charged in the complaint.
9. The third charge is that respondent's facility and manner of conducting operations were found to be in violation in several particulars of the Standards for the Humane Handling, Care, Treatment, and Transportation of Dogs as disclosed in an inspection on February 23, 1982. This inspection by Dr. Wheeler and Dr. Sanz was complete enough to disclose several deficiencies as shown on the report (Exhibit 5) in detail. These were in the conduct of operations for watering, sanitation, cleaning, pest control, veterinary care and transport enclosures. These deficiencies are set forth explicitly on the second page of the report.
Respondent signed this report and agreed to correct the deficiencies. The deficiencies in watering, sanitation, cleaning, and veterinary care were to be corrected by March 1, 1982. The deficiencies *1093 relating to pest control and transport enclosures were to be corrected by March 14, 1982. These were major deficiencies and, as such, were violations of the applicable Standards.
On March 5, 1982, Dr. Wheeler conducted a follow-up investigation. His report (Exhibit 6), together with his testimony, disclosed that very little had been done to correct the deficiencies. Specifically, the evidence is that the deficiencies with respect to sanitation, cleaning, and veterinary care had not been corrected by March 1, 1982. The deficiencies with respect to pest control and transportation enclosures had not been corrected, but respondent had until March 14 to correct them.
Respondent was fully aware of the results of this inspection on March 5 and signed the report which detailed the findings of Dr. Wheeler.
In consideration of the fact that respondent had failed to correct these known specific major deficiencies enumerated by March 1, 1982, it is clear that respondent was in violation of the Standards in these several particulars. Accordingly, we find that the preponderance of evidence fully supports the third charge and that respondent was in violation of the Standards as charged in the complaint.
10. On March 24, 1982, Dr. Wheeler conducted another follow-up inspection of respondent's facility. His report of the inspection (Exhibit 7), together with his testimony, is that there was no evidence that a veterinary care program had been established, and that there were still the same deficiencies in sanitation and cleaning which were not corrected. In other words, these deficiencies which have been pointed out in two previous reports and inspections had not been corrected by March 24. Additionally, the report discloses other deficiencies and non-conformity with the Standards in the storage of food and bedding, waste disposal, and housekeeping details at the facility.
**12 Respondent received and signed this report which instructed him to correct these additional deficiencies by April 15, 1982.
We find that respondent had reasonable opportunity to correct the deficiencies noted and, indeed, had stated that he would do so. He did not. Accordingly, we find that the preponderance of evidence fully supports the fourth charge and that respondent was in violation of the Standards as charged in the complaint.
11. The hearing did not disclose any inspection report, or the results of any inspection conducted after March 24, 1982. So we do not know whether or not the deficiencies which should have been corrected by April 15, 1982 were in fact corrected. As a consequence, the Findings herein are limited to the specific information *1094 adduced at the hearing with respect to respondent's operations and maintenance activities on the dates specified.
12. We have carefully examined respondent's contentions, which are contained in his testimony and his hand-written brief submitted after the hearing. We find nothing materially significant which would lead us to find that the results of the investigations were erroneous. To the contrary, we conclude that respondent wanted to conduct his operations in a manner to give a bare minimum of attention to the animals involved without serious attention to his responsibilities as a licensee under the Act to conform to the established Regulations and Standards.
Having found that respondent violated the Act and the Regulations and Standards as charged, we conclude that the sanction recommended by complainant is reasonable in the circumstances, and consistent with the policies of the Secretary for administration of the Act. Accordingly, the order proposed by complainant should be issued.
ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER
Respondent's appeal, in the main, reargues matters that were argued below and correctly decided by Judge Liebert. Although respondent challenges the evidentiary support for Judge Liebert's findings of fact, the findings are abundantly supported by the evidence.
Respondent complains that Judge Liebert's decision was not filed until 11 months after the hearing. This delay is unfortunate from the standpoint of the Department's administration of the regulatory program, but it imposed no burden on respondent. Moreover, it was unavoidable in view of Judge Liebert's other workload and an illness which absented him from his office for several months.
The Act authorizes a civil penalty of not more than $1,000 for each violation, and provides that each "violation and each day during which a violation continues shall be a separate offense" (7 U.S.C. § 2149(b)). The Act further provides (7 U.S.C. § 2149(b)):
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.
**13 Although respondent does not challenge the amount of the civil penalty, but, rather, contends that there were no violations and, therefore, there should be no penalty, the $4,000 civil penalty imposed here is modest considering respondent's numerous, serious *1095 violations, his handling of a large number of animals during the course of a year, and, the fact that a number of major violations continued after respondent was advised in writing of the violations, and given an opportunity to correct them within a specified time period.
In addition, the imposition of the $4,000 civil penalty and the suspension of respondent's license for 120 days is consistent with the Department's policy to impose severe sanctions for serious violations of any of the regulatory programs administered by the Department to serve as an effective deterrent not only to the respondents but also to other potential violators. This policy has been followed in all of the Department's disciplinary proceedings in recent years.
The basis for the Department's sanction policy is set forth at great length in numerous decisions, e.g., In re Worsley, 33 Agric. Dec. 1547, 1556-71 (1974), [FN2] set forth in the Appendix to this decision. [FN3] The Department's sanction policy is also discussed at length in In re Esposito, 38 Agric. Dec. 613, 624-65 (1979).
For the foregoing reasons, the following order should be issued.
Respondent Donald Stumbo, his agents and employees, are hereby ordered to comply with every provision of the Animal Welfare Act (7 U.S.C. § 2131 et seq.) and the Regulations and Standards issued thereunder (9 C.F.R. Parts 1, 2, and 3), and shall cease and desist from any violation thereof. Respondent is specifically ordered not to interfere with the taking of photographs by APHIS personnel during a valid inspection of his animal facility.
Respondent Stumbo's license shall be suspended for a period of 120 days and thereafter until respondent demonstrates that his facility and maintenance operations fully comply with all applicable Regulations and Standards under the Act.
Respondent Stumbo is assessed a civil penalty of $4,000 which shall be paid within thirty (30) days after the date of service of this order on respondent. Payment shall be by certified check or money order payable to the Treasurer of the United States and forwarded to Donald A. Tracy, United States Department of Agriculture, Office of the General Counsel, Room 2014, South Building, Washington, D.C. 20250.
The provisions of the first pargraph of this order shall become effective on the day after service of this order on respondent. The license suspension provisions of this order shall become effective on the 30th day after service of this order on respondent.
FNa. The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app., at 764 (1976). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program).
FN1. These have been restated for the sake of clarity and ease of reference.
FN2. The Department's severe sanction policy did not originate with Worsley, but, rather, was mentioned briefly in the first decision issued by the present Judicial Officer, In re Henner, 30 Agric. Dec. 1151, 1263-64 (1971), and was further developed in numerous other decisions before it was finalized in In re Miller, 33 Agric. Dec. 53, 64-80 (1974), aff'd per curiam, 498 F.2d 1088 (5th Cir. 1974).
FN3. Severe sanctions issued pursuant to this policy were sustained, e.g., in In re Collier, 38 Agric. Dec. 957, 971-72 (1979), aff'd, 624 F.2d 190 (9th Cir. 1980); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1362-63 (1978), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980); In re Muehlenthaler, 37 Agric. Dec. 313, 330-32, 337-52, aff'd mem., 590 F.2d 340 (8th Cir. 1978); In re Mid-States Livestock, Inc., 37 Agric. Dec. 547, 549-51 (1977), aff'd sub nom. Van Wyk v. Bergland, 570 F.2d 701 (8th Cir. 1978); In re Cordele Livestock Co., 36 Agric. Dec. 1114, 1133-34 (1977), aff'd per curiam, 575 F.2d 879 (5th Cir. 1978); In re Livestock Marketers, Inc., 35 Agric. Dec. 1552, 1561 (1976), aff'd per curiam, 558 F.2d 748 (5th Cir. 1977), cert. denied, 435 U.S. 968 (1978); In re Catanzaro, 35 Agric. Dec. 26, 31-32 (1976), aff'd, No. 76.1613 (9th Cir. Mar. 9, 1977), printed in 36 Agric. Dec. 467; In re Maine Potato Growers, Inc., 34 Agric. Dec. 773, 796, 801 (1975), aff'd, 540 F.2d 518 (1st Cir. 1976); In re M.&H. Produce Co., 34 Agric. Dec. 700, 750, 762 (1975), aff'd 549 F.2d 830 (D.C. Cir.), cert. denied, 434 U.S. 920 (1977); In re Southwest Produce, Inc., 34 Agric. Dec. 160, 171, 178, aff'd per curiam, 524 F.2d 977 (5th Cir. 1975); In re J. Acevedo & Sons, 34 Agric. Dec. 120, 133, 145-60, aff'd per curiam, 524 F.2d 977 (5th Cir. 1975); In re Marvin Tragash Co., 33 Agric. Dec. 1884, 1913-14 (1974), aff'd 524 F.2d 1255 (5th Cir. 1975); In re Trenton Livestock, Inc., 33 Agric. Dec. 499, 515, 539-50 (1974), aff'd per curiam, 510 F.2d 966 (4th Cir. 1975); In re Miller, 33 Agric. Dec. 53, 64-80, aff'd per curiam, 498 F.2d 1088, 1089 (5th Cir. 1974).
**14 Excerpt from In re Worsley, 33 Agric. Dec. 1547, 1556-71 (1974).
U.S.D.A. Sanction Policy