UNITED STATES DEPARTMENT OF AGRICULTURE (U.S.D.A.)
IN RE: ZOOLOGICAL CONSORTIUM OF MARYLAND, INC., AND RICHARD HAHN.
47 Agric. Dec. 1276 (1988)
Exhibitor who engaged in recurring pattern of noncompliance with standards governing structural strength, food storage, ventilation, maintenance of facilities and enclosures, cleaning, housekeeping and interior building surfaces, but who made good faith effort to achieve compliance, is properly sanctioned with $1000 civil penalty, 20-day suspension, and cease and desist order.
Initial decision issued by John A. Campbell, Administrative Law Judge. Decision and order issued 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. s 2131 et seq.), and the regulations and standards issued thereunder (9 C.F.R. s 1.1 et seq.). On March 16, 1987, (then Chief) Administrative Law Judge John A. Campbell (ALJ) issued an initial Decision and Order suspending respondents' license for 20 days, and thereafter until compliance is achieved, assessing a civil penalty of $1,000, and directing respondents to cease and desist from numerous practices involving the care and housing of exhibited animals, including sanitation, structures, and housekeeping functions at respondents' facilities.
On May 22, 1987, respondents appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. ss 556 and 557 (7 C.F.R. s 2.35). [FNa] On June 17, 1987, complainant filed a petition in opposition to respondents' appeal, which petition also contains a cross-appeal for increased sanctions. The case was referred to the Judicial Officer for decision on July 21, 1987.
*1277 Based upon a careful consideration of the record, the initial Decision and Order is adopted as the final Decision and Order in this case, with several changes too trivial to itemize. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.
ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
This is a disciplinary proceeding under the Animal Welfare Act, 7 U.S.C. ss 2131-2156 (hereafter called the "Act"), instituted by a complaint filed May 5, l986, by the Administrator of the Animal and Plant Health Inspection Service (hereafter called "APHIS"), United States Department of Agriculture. The complaint alleges that the respondents willfully violated the regulations and standards issued pursuant to the Act, 9 C.F.R. s l.l-3.l42, regarding sanitation, structure, and housekeeping functions at respondents' facilities.
**2 An answer was filed on behalf of respondents on June 3, l986. There was no response to the jurisdictional allegations of the complaint, however, respondents denied the substantive allegations and any willful violations of the Act.
A hearing was held in this proceeding on October 22 and 23, l986, in Emmitsburg, Maryland. On December l6, l986, the hearing was reopened to retake testimony which was given on the morning of October 22, l986, and lost by the reporter. John D. Griffith of the Office of the General Counsel, United States Department of Agriculture, appeared on behalf of complainant. Richard Hahn appeared on behalf of himself and respondent Zoological Consortium of Maryland. At the close of the reopened hearing the time was set for the filing of briefs.
Hereafter transcript references will be cited Tr. (page number), while complainant's exhibits will be cited Cx #, and respondents' exhibits as Rx #.
Findings of Fact
1. Respondent, Zoological Consortium of Maryland, Inc., is a corporation with its mailing address at l30l9 Catoctin Furnace Road, Thurmont, Maryland 2l788; is and at all times material herein was, an exhibitor within the meaning of that term as defined in the Act and subject to the provisions of the Act and the regulations and standards issued thereunder; and is, and at all times material herein was, licensed as a Class C licensee under the Act.
2. Respondent, Richard Hahn, is an individual whose business mailing address is l30l9 Catoctin Furnace Road, Thurmont, Maryland 2l788. Respondent Hahn, at all times material herein, was an exhibitor within the meaning *1278 of that term as defined in the Act, and subject to the provisions of the Act and the regulations and standards issued thereunder.
3. Respondent, Zoological Consortium of Maryland, Inc. is (and at all times material herein was) owned, managed and controlled by Respondent Hahn. Respondent Hahn established its policies and directed its activities, including those which constitute the violations of the regulations and standards found herein. The zoo has been in existence since l933 and respondent Hahn has been its director since l966.
4. On January 25, l985, Nancy E. Wiswall, Veterinarian In Charge, APHIS, sent respondent Hahn a letter concerning prior deficiencies. (Rx 6, Tr. ll4) The letter reads in part as follows:
I am pleased to see that you have made substantial progress toward bringing your exhibitor's premises into compliance with the Animal Welfare Act (AWA). I have received the most recent report of inspection of your place by Dr. Ulysses J. Lane, Veterinary Medical Officer for Veterinary Services, and Mr. Charles Langenfelder, Area Compliance Officer. I note that in your letter of intent, November l5, l984, you agreed to correct the remaining few deficiencies by December 3l, l984.
x x x x x x
The report of alleged violation which was pending against you at our headquarters in Hyattsville, Maryland, will be dismissed. However, if in the future we find a major violation of the regulations or standards of the AWA, we will review the matter for possible prosecution. We hope that this will not be necessary.
x x x x x x
**3 5. APHIS inspected respondents' facilities on June 20, l985, and discovered numerous violations of the regulations and standards issued under the Act. (Cx 7)
6. APHIS reinspected the respondents' facilities (Cx 3) on July 30, l985, and found that six deficiencies noted during the previous June 20 inspection had been corrected, while five deficiencies still existed (Finding 6 a-e below).
The inspection also disclosed five new violations (Finding 6 f-i below).
The inspection of July 30, l985, disclosed the following violations of section 2.l00(a) of the regulations (9 C.F.R. s 2.l00(a)) and of the standards issued under the Act (Cx 3):
a. The facility housing the muntjacs was not structurally sound. The frame was not square and was buckled in several places. Although the inspector did not physically probe the structure, it appeared in possible danger of collapse. Tr. l6, 227, 267-269, 299-304; Rx l, Cx l6.
*1279 b. Indoor housing facilities of the primate holding area had a strong odor of ammonia and were not adequately ventilated. A second fan was added at a later date by respondents to improve ventilation. Tr. 226-227, 269-270, 305- 309.
c. Interior surfaces in the primate holding area were not substantially impervious to moisture. Approximately 8 out of l8 walls were in need of painting. Subsequent inspection disclosed some evidence of painting. Tr. 8l, 270-271, 3l0-312.
d. Primary enclosures for primates contained holes with sharp edges. The holes were located in stainless steel walls, were smooth and not jagged. Tr. 27l-272, 228-229, 353-354; Rx 2.
e. Primary enclosures for primates contained an excessive accumulation of excreta. The inspector noted some improvement on the July 30 inspection. Tr. 271-272, 3l7.
f. The facilities housing the mountain lions, bobcats, jaguar, leopard, bengal tigers, black leopard, and the sun bear were not maintained in good repair and did not protect the animals from injury. [FN1]
Among other things, there were cracks in dens, rusting enclosure fences, sharp ends on wire fencing enclosing silos, and flimsy floor with rusting iron bars in Bengal Tiger den. Tr. 5-6, l0-l5, 27-29, 36, 272-275; Cx 9, l2, l4, l5.
Respondents attempted, and did correct, some of the deficiencies. Tr. 88-90, 95, l65, l73, 205, 208, 230; Rx 5, l0.
g. The facility housing the camel was not maintained in good repair. Tr. 7, 9, 229, 273; Cx l0, 11, Rx 3.
h. The facility housing the coyote cubs was not clean and was not maintained in good repair so as to protect the animals from injury. Tr. 275. Subsequently, respondents removed a broken wire used to hold a water dish to avoid injury to the cubs. Tr. 230; Rx 4.
i. Supplies of food were not stored in such a way as to protect them from infestation and contamination by vermin. Although respondents maintained a permanent facility for the storage of animal feed, the problem involved open bags of food found in the primate enclosure. Tr. 236-237, 252-253, 276-277, 340-34l; Rx 11, l2.
**4 7. Inspections conducted after July 30, l985, disclosed some deficiency corrections, a recurrence of earlier violations, and new deficiencies. Cx 20, 2l, 22, 23, 24.
All contentions of the parties raised in this proceeding, whether or not specifically mentioned herein, have been considered in the light of the record evidence.
By reason of the findings of fact, it is concluded that respondents have failed to maintain their facility in compliance with, and have willfully violated, section 2.l00 of the regulations and sections 3.75, 3.76, 3.78, 3.8l, 3.l25 and 3.l3l of the standards.
These violations warrant the imposition of a $l,000 civil penalty, a 20-day suspension and prohibition continuing until full compliance is achieved, and the cease and desist provisions requested by complainant.
The evidence adduced at the hearing demonstrates that respondents violated standards governing structural strength, storage of food, ventilation, maintenance of facilities, maintenance of primary enclosures, cleaning of primary enclosures, housekeeping, and interior building surfaces. These violations were not minor items that may have been momentarily deficient. Rather, the respondents' failure to meet the requirements of the standards was a recurring problem.
During the inspection on July 30, l985, there were numerous violations, many of which were recurring. Although some corrective action was taken by respondents from time to time, each inspection disclosed that new items at the facility were in violation. The Act, regulations and standards contain minimum requirements which must be met by licensed dealers at all times.
Review of the record as a whole indicates that the principal problem concerns respondents' failure to fully bring the facilities into compliance with the regulations and standards issued in accordance with the Act. This problem is best illustrated by the testimony of Dr. Nancy E. Wiswall at pages l03 through l09 of the record:
We have the history of violations that have -- some of which have not been corrected, others which have been corrected temporarily. Seldom have they lasted. There has been no sense of real improvement during those four years. We've repeated what's gone on over and over again. We've gone in, we've seen deficiencies, we've gone back.
On each inspection there has been deficiencies. There's never been a time in four years that there haven't been deficiencies. And this is with four veterinarians going in there, so it's not just one inspector's views on that.
On each re-inspection we see certain deficiencies have been corrected, others that wouldn't be. Some of those that were corrected were again deficiencies the next time. Some of these deficiencies that are in here were deficiencies four years ago.
*1281 x x x x x x
I think that for myself and for the inspectors who have been out there, there has been a decreasing belief in Mr. Hahn's good faith. I think each of the veterinarians that have been out there have initially -- has believed Mr. Hahn's good intentions, and then found that what he said he would do he does not do. And what he --in some cases what he says he will do has been done in a very band-aid type temporary fashion.
**5 And so each of the four inspectors, I think, have very honestly tried to communicate with Mr. Hahn as fully as possible and have believed that he would respond to the deficiencies that are cited and not only in response as a reaction, but that he understood what he needed to do to have the place in compliance that did need for an inspector to come up there and point them out.
And I think that what I have seen is that each of them have gotten disillusioned with the fact that he didn't follow up. And I have felt the same way. He seems to be very familiar with what needs to be done. He's been a licensee for many years, and we all understand that he's got financial limitations. He has problems getting and keeping employees.
But ultimately it doesn't serve as an excuse to be continually out of compliance. And there I see no change. I see no -- I see a degree of improvement, but it's still not enough to bring it into compliance.
x x x x x x
Mr. Hahn has limited resources and yet he will not reduce the number of animals he has. If he had less animals, he would have a much better opportunity to care for them so that the animals in the facilities would be under compliance. And I see no way over the four-year period that I've been involved with this facility that he understands what the situation is, too many animals for the resources. And he will not modify that.
The first witness called by the complainant at the hearing was Dr. Michael David, D.V.M., a Veterinary Medical Officer with APHIS. Dr. David testified about conditions at the respondents' facility which he observed during the course of an inspection on July 30, l985. During this inspection, Dr. David observed ventilation problems in the primate house, noting that there was a very strong odor of ammonia which would eventually lead to respiratory lining irritation in the primates. Primary enclosures in the primate building had peeling paint and eroding surfacesand *1282 the enclosures were not substantially impervious to moisture and therefore could not be properly cleaned and disinfected. Dr. David also testified regarding cleaning and sanitation in the primate enclosure stating that there were excessive accumulations of excreta which posed a health hazard for the primates.
Dr. David also testified regarding exotic animals other than primates that were present at the respondents' facility on July 30, l985. Dr. David testified that the enclosure housing the muntjac needed reinforcement in that the frame was not square and that it would collapse if given time. He testified that when he inspected the facilities housing the mountain lions, bobcat, jaguar, leopard, bengal tigers, and the sun bear, he discovered that there was significant rusting of the fencing which resulted in broken and sharp edges which could lead to potential injury and laceration. Dr. David testified that the jaguar and black leopard dens had significant cracks which made it difficult to sanitize the dens, thereby increasing the potential for injury to the animals. He discovered other conditions in violation of the standards such as buckled fencing around the camel enclosure, which created a risk of injury to the animal, a coyote cub in a cage with a broken water rack with sharp edges located where the animal could be injured, a coyote cub enclosure which was full of excrement, spilled feed and water, and open feed bags in the primate holding area which created a risk of contamination of the area by roaches and other vermin. (Tr. 269-277)
**6 Accompanying Dr. David on the July 30, l985, inspection was Ms. Susan Horowitz, a Compliance Officer for APHIS, whose testimony corroborated the findings of Dr. David.
Assertions contained in respondents' brief that the regulations are imprecise, and that the inspectors were inexperienced, are without merit. The record discloses no infirmity in the language of the regulations and standards as it pertains to the violations considered here. Likewise the record demonstrates that the inspectors were qualified to conduct the inspections, and that the procedures followed were proper.
On the other side of the coin, and as respondents note in section V(A) of their brief, there was no evidence of animal abuse or inhumane treatment of animals at respondents' facilities. Moreover, respondents' exhibits 9 and l0 indicate an in-house program of animal care and facility maintenance by respondents. (Tr. l99-2l9, 243-249)
Dr. Joseph Irwin, associate editor of National Geographic Research, a scientific journal of the National Geographic Society, testified on behalf of respondents. Dr. Irwin is an expert on primates, who also had some familiarity with the Act at the Brookfield Zoo where he was curator for primates for the Chicago Zoological Society. (Tr. l49-l52, l70-l73)
Dr. Irwin acknowledged existing deficiencies at respondents' zoo (Tr. l54-l56, l73) but testified that primate enclosures will always have a strong odor regardless of the ventilation system in use, and that primates quickly scratch up the walls after painting. (Tr. l55-l56). Further, Dr. Irwin described many outstanding features of the zoo: rare primates, and the unusual *1283 spider monkey island. (Tr. l58-l62). Dr. Irwin cautioned that a total aseptic environment is not good for animals in captivity. (Tr. l64)
Dr. Irwin also discussed the development of plans and future funding for improvements at the zoo (Tr. l57-l58), and suggested that the imposition of a $6,000 penalty would adversely affect future improvements at the zoo. (Tr. l63)
Respondent Hahn testified that he had made over $25,000 in capital improvements to the facility over the past two years, and spoke of future plans to obtain funds for future improvements. (Tr. 240-24l).
The testimony on behalf of respondents, while indicative of good intentions to improve the facilities, does not excuse the violations which existed during the July 30, l985, inspection.
Further, the warning letter of January 25, l985 (Finding of Fact 4), informed the respondents that further major violations of the regulations or standards would be reviewed for possible prosecution. Notwithstanding this notice, the respondents continued to operate their facility in violation of the Act, regulations and standards as charged in the complaint.
The Secretary's established sanction policy for disciplinary cases arising under the Animal Welfare Act and similar statutes provides that it is the Department's policy to assess severe sanctions for serious violations of the Act and the regulations and standards. In re Esposito, 38 A.D. 6l3 (l979). This policy is intended to deter further violations by the present respondents and other persons subject to regulations, in order to achieve the remedial purposes of the Act. See, In re Christ, 35 A.D. l95 (l976); In re Worsley, 33 A.D. l547 (l974).
**7 Giving due consideration to all of the four factors contained in the Act, 7 U.S.C. 2l49(b), i.e., size of the respondents' business, gravity of the violations, good faith, and history of previous violations, the sanctions imposed are appropriate, reasonable, and necessary to achieve the remedial purpose of the Act, and to deter respondents and others from similar violations. Further, in view of the nature of the violations considered here, the order issued herewith is consistent with the Department's severe sanction policy, and at the same time will not stifle respondents' plans for future improvements after compliance with the Act is achieved.
ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER
Respondents contend on appeal that the ALJ's findings and conclusions are not adequately supported by the record, but the record abundantly supports the ALJ's findings and conclusions. In fact, the proof here surpasses *1284 the preponderance of the evidence, which is all that is required. [FN2] Other recent Animal Welfare Act decisions illustrate this proper standard (e.g., In re Hickey, 47 Agric. Dec. ____ (May 27, 1988), appeal docketed, No. 88- 7281 (9th Cir. July 22, 1988) and see In re Sabo, 47 Agric. Dec. ____ (Mar. 15, 1988)). Respondents' arguments on appeal, in this respect, merely reargue matters that were fully considered and correctly decided by the ALJ.
Respondents contend that their violations were not willful, but a violation is willful if the violator intentionally does an act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or acts with careless disregard of statutory requirements. [FN3] Respondents' actions certainly fit within this definition of willful. But, assuming, arguendo, that they did not, respondents' actions would still warrant a suspension order because respondents had received a prior warning letter, which fulfills the requirements of the Administrative Procedure Act (5 U.S.C. s 558(c)). This principle was recently restated in the Rodman case (In re Rodman, 47 Agric. Dec. ____ (May 27, 1988)), as follows:
Respondents' Violations Were Willful.
Under the Administrative Procedure Act, a suspension order cannot be issued unless the violations were willful or a prior warning letter was sent. Specifically, the Act provides (5 U.S.C. s 558(c)):
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.
Respondents' violations were willful, within the meaning of that term in the Administrative Procedure Act. As stated in George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir. 1974):
**8 *1285 Moreover, the "second chance" doctrine would apply only if the violations had not been willful. It is clear enough that under s 9(b), doing an act which is prohibited and doing it intentionally "irrespective of evil motive or reliance on erroneous advice" or "acts with careless disregard of statutory requirements" are willful. See Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); see also United States v. Illinois Central Railroad Co., 303 U.S. 239, 243, 58 S.Ct. 49, 82 L.Ed. 518 (1938).
Similarly, in Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961), the court held:
Petitioner urges his denial of trading privileges amounted to a suspension of a license, and that section 9(b) of the Administrative Procedure Act, 5 U.S.C.A. s 1008(b), was violated. We do not reach that question for the same section excludes cases of wilfulness. We hold the petitioner's conduct was wilful within the meaning of section 9(b) of the Administrative Procedure Act. We think it clear that if a person 1) intentionally does an act which is prohibited,--irrespective of evil motive or reliance on erroneous advice, or 2) acts with careless disregard of statutory requirements, the violation is wilful. Eastern Produce Co. v. Benson, 3 Cir., 278 F.2d 606, 609.
Respondents contend that the sanctions are too severe, but they are consistent with the Department's long-established policy to impose severe sanctions for violations that are repeated or that are regarded by the administrative officials and the Judicial Officer as serious, in order to serve as an effective deterrent not only to the respondents but also to other potential violators (see In re Parchman, 46 Agric. Dec. ____, slip op. at 67-77 (May 28, 1987) (90-day suspension and $10,000 civil penalty), aff'd, No. 3701 (6th Cir. July 22, 1988); In re Spencer Livestock Commission Co., 46 Agric. Dec. ____, slip op. at 213-51 (Mar. 17, 1987) (10-year suspension and $30,000 civil penalty), aff'd, 841 F.2d 1451 (9th Cir. 1988)).
All of respondents' other arguments have been considered, including Respondents' Opposition to Complainant's Cross-Appeal Regarding Sanctions (July 16, 1987), and are found to be without merit, even though not specifically mentioned.
Complainant's cross-appeal seeks to have the ALJ's sanction increased to that originally sought by complainant, viz., a $6,000 civil penalty and a 60-day suspension. Complainant is, of course, correct that the Department's severe sanction policy anticipates that the Judicial Officer will place great weight upon the sanction recommended by agency officials (Inre *1286 Esposito, 38 Agric. Dec. 613 (1979)). On the other hand, the Judicial Officer also places great weight upon the findings of fact, conclusions and order of the ALJ, whose job it is to examine the evidence of record and the credibility of the witnesses (In re Spencer Livestock Commission Co., 46 Agric. Dec. ____, slip op. at 174 (Mar. 19, 1987), aff'd, 841 F.2d 1451 (9th Cir. 1988)). Thus, in reviewing the sanction imposed in the initial decision, the Judicial Officer looks to ensure that the congressional objectives are met, and that the remedial purposes of that Act are achieved, such that respondent, and others will be deterred from future noncompliance with the Act, and its standards and regulations.
**9 In a recent case, the three objectives of the Act were set forth from its legislative history (In re Hickey, 47 Agric. Dec. ____, slip op. at 13 (May 27, 1988), appeal docketed, No. 88-7281 (9th Cir. July 22, 1988)), as follows (emphasis added):
The Animal Welfare Act was enacted in 1966 to achieve three objectives:
"The purposes of this bill, as amended, are (1) to protect the owners of dogs and cats from theft of such pets, (2) to prevent the use or sale of stolen dogs or cats for purposes of research or experimentation and (3) to establish humane standards for the treatment of dogs, cats and certain other animals . . . by animal dealers and medical research facilities." (Senate Report No. 1281, June 15, 1966; 2 U.S. Cong. & Admin. News 66, at 2635.)
In 1976 the Act was amended (Pub L. 94-279) to restate and explain those objectives, which are at the heart of this proceeding.
Class "C" exhibitors are included within this mandate for "other animals" by the regulations (9 C.F.R s 1.1(w) and (aa)).
Respondents committed numerous housekeeping violations, which were for the most part trivial within the concept established in In re Zartman, 45 Agric. Dec. 174 (1985). Moreover, this aging zoo's structures are showing some of the ravages of time, and need repair. The seriousness, however, results from the continuous nature of the violations. I believe respondents made good faith efforts to achieve compliance, but the requirement is compliance. The sanction herein should be sufficient to chasten respondents to do a better job in the future, and to achieve full compliance.
In summary, respondents have had continuous housekeeping problems, and need to refurbish or repair aging structures at this somewhat elderly facility. Respondents raised plausible (but nonetheless unacceptable) excuses, reasons and defenses to each of these points.
The Act (7 U.S.C. s 2149) requires that sanctions be imposed only after due consideration of four factors: business size, gravity of violations, good faith, and history of previous violations. Although respondents'business *1287 is probably large relative to some other private exhibitors, respondents' zoo in real terms is not that large. The violations, while serious, did not directly endanger the lives of any animals, or involve imminent injury to patrons. There were no resultant hurt, abused, or sick animals disclosed in the record. Respondents did not exhibit any cruel or inhumane treatment of their animals. As already stated, I believe that respondents did act in good faith to comply, albeit ineffectively. Respondent Hahn had been in charge of this business for about 20 years, and had had no regulatory problems until this complaint. The zoo was established in 1933, long before passage of the Animal Welfare Act.
The ALJ properly applied the above criteria to the facts herein, and imposed the proper sanction which "is consistent with civil penalties assessed in other comparable cases" (In re Robinson, 42 Agric. Dec. 7 (1983)). The $1,000 civil penalty assessed against respondents, together with the 20-day suspension, are adequate to serve as an effective deterrent to future violations by respondent and others.
**10 In affirming the ALJ's sanction, which is substantially less severe than that recommended by APHIS, I caution that no one should misconstrue that respondents' violations are not serious. The violations are serious. However, cease and desist provisions herein will operate with the 20-day suspension properly to achieve full compliance. This sanction allows APHIS to prevent the lifting of the suspension until respondents achieve full compliance, which was the very reason that these housekeeping violations became serious.
The civil penalty of $1,000 is appropriate because of respondents' good faith attempts to comply.
For the foregoing reasons, the following order should be issued.
Respondents shall comply with each and every provision of the Animal Welfare Act, 7 U.S.C. ss 2131-2156, and the regulations and standards issued thereunder, 9 C.F.R. ss l.l- 3.l42, and shall cease and desist from any violation thereof. In particular, respondents, their agents and employees, directly or through any corporate device, shall cease and desist from:
1. Failing to construct and maintain structurally sound indoor and outdoor facilities as required by 9 C.F.R. s 3.l25;
2. Failing to provide adequate ventilation for indoor housing facilities as required by 9 C.F.R. s 3.76;
3. Failing to maintain interior building surfaces in indoor housing facilities that are substantially impervious to moisture as required by 9 C.F.R. s 3.76;
*1288 4. Failing to maintain primary enclosures in good repair so as to protect nonhuman primates from injury as required by 9 C.F.R. s 3.78;
5. Failing to remove excreta from primary enclosures as required by 9 C.F.R. s 3.8l;
6. Failing to maintain facilities for animals other than nonhuman primates so as to protect the animals from injury as required by 9 C.F.R. s 3.l25;
7. Failing to clean primary enclosures so as to protect the animals from contamination and injury as required by 9 C.F.R. s 3.l3l; and
8. Failing to store supplies of food so as to protect them from infestation or contamination by vermin as required by 9 C.F.R. s 3.75.
Respondents are hereby assessed a civil penalty of $l,000 to be paid not later than the 90th day after service of this order, by certified check or money order made payable to the Treasurer of the United States, and sent to John D. Griffith, Esq., United States Department of Agriculture, Office of the General Counsel, Room 2014, South Building, Washington, D.C. 20250-1400.
Respondent Zoological Consortium of Maryland, Inc.'s license is suspended for 20 days and thereafter until it demonstrates to APHIS that it is in compliance with the Act and the regulations and standards issued thereunder. When respondent Zoological Consortium of Maryland, Inc., demonstrates to APHIS that it is in compliance with the Act and the regulations and standards issued thereunder, a supplemental order will be issued in this proceeding, upon the motion of APHIS, terminating the suspension after the expiration of the 20-day period.
**11 Respondent Hahn is prohibited from directly or indirectly engaging in business in any capacity for which a license is required under the Act for a period of 20 days and thereafter until he demonstrates to APHIS that he is in compliance with the Act and the regulations and standards issued thereunder. When respondent Hahn demonstrates to APHIS that he is in compliance with the Act and the regulations and standards issued thereunder, a supplemental order will be issued in this proceeding, upon a motion of APHIS, terminating this prohibition after the expiration of the 20-day period.
The cease and desist provisions of this order shall become effective the day after service of this order on respondents, and the suspension provisions of this order shall become effective on the 30th day after service of this order on respondents.
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 1068 (1982). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program).
FN1 Combines allegations 6 and 7 of the complaint.
FN2 See Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981); In re Rowland, 40 Agric. Dec. 1934, 1941 n.5 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1346 (1978), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980).
FN3 For an extensive discussion of the meaning of the term willful, as applied by the Department, see In re Shatkin, 34 Agric. Dec. 296, 297-314 (1975).