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UNITED STATES DEPARTMENT OF AGRICULTURE (U.S.D.A.)

IN RE: E. LEE COX AND BECKY COX, D/B/A PIXY PALS KENNEL
United States
49 Agric. Dec. 115 (1990)


Case Details
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Summary:  

This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. ss 2131- 2156). On April 20, 1989, Administrative Law Judge Edwin S. Bernstein (ALJ) issued an initial Decision and Order suspending respondents' license for 90 days, and thereafter until respondents demonstrate compliance with the Act and regulations, assessing a civil penalty of $12,000, and directing respondents to cease and desist from failing to retain possession and control of all dogs until they are at least 8 weeks of age and have been weaned, failing to hold dogs for not less than 5 business days after acquisition, failing to keep and maintain proper records, and failing to allow inspection of respondents' facility and records. Dealers and other regulated persons are required to grant access to their records during ordinary business hours, without any advance notice from Department.



Judge Initial decision issued by Edwin S. Bernstein, Administrative Law Judge. Decision and order issued by Donald A. Campbell, Judicial Officer. delivered the opinion of the court.


Opinion of the Court:

This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. ss 2131- 2156). On April 20, 1989, Administrative Law Judge Edwin S. Bernstein (ALJ) issued an initial Decision and Order suspending respondents' license for 90 days, and thereafter until respondents demonstrate compliance with the Act and regulations, assessing a civil penalty of $12,000, and directing respondents to cease and desist from failing to retain possession and control of all dogs until they are at least 8 weeks of age and have been weaned, failing to hold dogs for not less than 5 business days after acquisition, failing to keep and maintain proper records, and failing to allow inspection of respondents' facility and records.

On June 5, 1989, respondents appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's *116 cases subject to 5 U.S.C. ss 556 and 557 (7 C.F.R. s 2.35). [FNa] The case was referred to the Judicial Officer for decision on August 11, 1989.

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 a few minor changes in brackets. The effective date of the order has been changed, in view of the appeal. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION

**2 This is a disciplinary proceeding under the Animal Welfare Act, 7 U.S.C. 2131-2156 (the Act), instituted by a Complaint filed on September 10, 1987 by the Administrator of the Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture. Complainant filed an amended Complaint on May 10, 1988. The Amended Complaint alleges that Respondents willfully violated the Act and the regulations issued pursuant to the Act at 9 C.F.R. 1.1-2.130. On June 2, 1988, Respondents filed an Answer to the Amended Complaint in which they disputed the substantive allegations. A hearing was held before me in North Platte, Nebraska on December 20 and 21, 1988. [FN1] The parties filed proposed findings of fact, proposed conclusions of law and briefs. All proposed findings, proposed conclusions and arguments have been considered. To the extent indicated, they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.

*117 Findings of Fact

1. E. Lee Cox and Becky Cox are partners doing business as Pixy Pals Kennel at Route 2, Post Office Box 235, Stratton, Nebraska 69043. (Answer, par. 1)

2. At all times material, Respondents operated as a dealer as defined in the Act and held Class B license number 473-47 issued under the Act. At the time they applied for the license, Respondents were given a copy of the regulations and standards promulgated under the Act and agreed in writing to comply with the regulations and standards. (Answer, par. 1)

3. Respondents delivered dogs under eight weeks of age to carriers for transportation in commerce as follows:

a. On March 19, 1985, Respondents shipped one dog and on March 21, 1985, Respondents shipped three dogs. (TR I-83-87; CX 11, 12)

b. On March 28, 1985, Respondents shipped three dogs. (TR I-87-89; CX 13, 14)

c. On May 8, 1985, Respondents shipped two dogs. (TR I-90-92; CX 15, 16)

d. On May 15, 1985, Respondents shipped three dogs. (TR I-91; CX 16)

4. Respondents failed to hold dogs that they acquired for at least five business days as follows:

a. On November 14, 1985, Respondents shipped in commerce two dogs which they had held for less than five business days. Respondents purchased five basset puppies from Green Meadow Kennels on November 11, 1985. Marjorie Wells, who managed the kennels, testified that the purchase was made on November 11, 1985. (TR I-11-12) Green Meadow's ledger page (CX 1) and a canceled check from Pixy Pals (CX 2) also indicate that the purchase was made on November 11. Although Respondents' records (CX 22 and 23) list the purchase date as November 7, 1985, I find Mrs. Wells' testimony, Green Meadows records and the date on Respondents' check to be *118 more persuasive. Respondents' records (CX 2 [2]) indicate that two of the dogs were shipped on November 14, 1985, less than five days after they were acquired. (TR II-7-17)

b. On November 21, 1985, Respondents shipped in commerce one dog which they had held for less than five business days. Mrs. Dorothy Stoner testified that her daughter, Pam Stoner, sold three Cocker Spaniel puppies to Respondents and that Respondents picked up the dogs and paid by check on the date of the check. (TR I-25-29) Respondents' check was dated November 18, 1985. (CX 3) Although Respondents' records (CX 25) indicate that Respondents obtained the dogs on November 15, 1985, I find that the dogs were, in fact, picked up and paid for on November 18, 1985, as Mrs. Stoner's testimony and the canceled check (CX 3) indicate. Respondents' records indicate that they shipped one of these puppies on November 21, 1985, less than five business days after Respondents obtained the puppy. (CX 25, 26)

**3 c. On December 6, 1985, Respondents shipped in commerce six dogs which Respondents had held for less than five business days. Ms. Sheila Tacl testified that on December 2, 1985, she sold six rottweiler puppies to Respondents. Ms. Tacl's records (CX 6) as well as a copy of Respondents' check to Ms. Tacl (CX 7) corroborate that the sale was made on December 2, 1985. Respondents' records (CX 29) show that Respondents shipped the puppies on December 6, 1985, less than five business days after Respondents acquired the puppies.

d. On December 13, 1985, Respondents shipped in commerce four dogs which Respondents had held for less than five days. Ms. Rosella Twidwell testified that she sold four Chihuahua puppies to Respondents on December 9, 1985. (TR I-59) [Ms. Twidwell's] records (CX 8) confirmed that the sale was on December 9, 1985 and a copy of Respondents' check to Ms. Twidwell (CX 9) was dated December 10, 1985. Respondents' records show that Respondents shipped the dogs on December 13, 1985, less than five business days after Respondents acquired the puppies. (CX-32)

5. Respondents falsified records and failed to keep and maintain records which fully and correctly disclose the necessary information concerning dogs purchased, acquired, held, or otherwise in their possession and control.

*119 a. Respondents' records show that they purchased eight dogs from Green Meadow Kennels on November 7, 1985, when, in fact, they purchased these dogs on November 11, 1985. (TR I-8-18; TR II-7-17; CX 1, 2, 22, 24)

b. Respondents' records show that they purchased three dogs from Ms. Pamela Stoner on November 15, 1985, when, in fact, they purchased those dogs on November 18, 1985. (TR I-24-29; TR II-20-24; CX 3, 25, 26)

c. Respondents' records show that they purchased four dogs from Ms. Rosella Twidwell on December 8, 1985 when, in fact, they purchased those dogs on December 9, 1985. (TR I-58-62; TR II-40-43; CX . . . 9, 32 [; see, also, Ms. Twidwell's record, CX 8])

6. On January 27, 1988, Respondents refused to permit APHIS officials to inspect their facility and records. Bob Wells, an APHIS investigator, testified that on January 27, 1988 he visited Respondents' premises to inspect their records. Respondent Lee Cox told Mr. Wells that he was not welcome and asked him to leave immediately. (TR [I]-94) As Mr. Wells walked to his car, Mr. Cox made some abusive remarks including "you people are just like the Gestapo . . . you're just like the Communists . . . get out of here and don't ever come back." (TR [I]-95) In addition, Mr. Cox told Mr. Wells that if he wanted any information, he must make an appointment at least two weeks in advance and then Respondents would see if they had time for him. (TR [I]-94)

7. Respondents are one of the largest dog brokers in the State of Nebraska. They reported gross income from the sale of animals of $1,123,000 from April 1985 to April 1986; $1,772,000 from April 1, 1986 to April 1, 1987, and $2,711,046.40 from April 1, 1987 to April 1, 1988. (CX 10)

Conclusions of Law

**4 1. Respondents violated 9 C.F.R. 2.130 by delivering to carriers for transportation in commerce dogs that were less than eight weeks of age.

2. Respondents violated 7 U.S.C. 2135, and 9 C.F.R. 2.101 by failing to hold dogs for at least five business days after they acquired the dogs.

3.

Respondents violated 7 U.S.C. 2140 and 9 C.F.R. 2.75 by failing to keep and maintain accurate records.

*120 4. Respondents violated 7 U.S.C. 2146 and 9 C.F.R. 2.126 by refusing to permit APHIS officials to inspect their facility and records on January 27, 1988.

5. The requested sanction, which includes a civil penalty of $12,000 and a suspension of Respondents' license for 90 days, is appropriate.

Respondents' delivery of dogs under eight weeks of age to carriers for transportation in commerce is a serious violation which warrants a strict sanction, In re Stuekerjuergen, 44 Agric. Dec. 186, 189, (1985). In that case, it was explained that "the minimum age requirement is based on a finding by the Secretary that shipment of dogs under 8 weeks of age adversely affects . the animal's ability to function [in] its adult environment,' and is, therefore, inhumane." In this case, Respondents repeatedly delivered dogs under eight weeks of age to carriers for shipment to pet stores in other states. Shipping underage animals to distant locations subjects the animals to great stress. Respondents' claim that they were led to believe by the unlicensed dealers from whom they purchased the dogs that the dogs were already eight weeks old does not mitigate the violations. In re Stuekerjuergen, supra, at 190.

Respondents' violations of the five-day holding period requirement and falsification of records are also serious violations which warrant a serious sanction. The five-day holding period is particularly important for dealers who buy from unlicensed sources since USDA does not know the existence of the unlicensed sources and has no way of ascertaining what conditions the animals have been raised in and whether the animals are healthy when purchased by the dealers. (TR I-67) Respondents' failure to comply with this holding period requirement greatly increases the likelihood that animals raised in substandard conditions will be placed in commerce without being monitored for health problems. In addition, Respondents falsified records to conceal these violations. Accurate recordkeeping by dealers is absolutely vital to the effective administration of the Animal Welfare Act. "It is therefore the duty of the Secretary of Agriculture to strictly enforce these requirements under the Act and severely sanction those who repeatedly violate them." In re Vrana, 43 Agric. Dec. 1758, 1764 (1984); see also In re Hickey, 47 Agric. Dec. ____, AWA Docket No. 369 (Judicial Officer's Decision and Order, May 27, 1988) [, aff'd, 878 F.2d 385 (9th Cir. 1989) (unpublished).]

Respondents' deliberate refusal to allow an APHIS official to inspect their records after APHIS officials had uncovered Respondents' recordkeeping and holding violations is also a serious violation of the Act and regulations. In re Hickey, supra.

**5 *121 The violations were willful. A willful violation is defined as [one] where the violator either intentionally does an act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or acts with careless disregard of statutory requirements. In re Arab Stock Yard, Inc., 37 Agric. Dec. 293, 306 (1978), aff'd sub nom. Arab Stock Yard v. United States, 582 F.2d. 39 ([5th Cir.] 1978).

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Respondents contend that the evidence does not adequately support the ALJ's findings of fact, including his finding of wilfulness, but there is much more than a preponderance of the evidence, which is all that is required. [FN2] The evidence is very carefully and accurately discussed in Complainant's Response to Appeal Petition, and no useful purpose would be served by rehashing that discussion here. Furthermore, the ALJ's severe sanction is entirely warranted by the serious violations found here, and it is consistent with the sanctions imposed in other cases under the Act.

Respondents ask guidance as to whether advance notice of a record inspection must be given by the Department, but it is clear from the Act (7 U.S.C. ss 2140, 2145(a)) and the regulations (9 C.F.R. s 2.126) that dealers and other regulated persons are required to grant access to their records during ordinary business hours, without any advance notice from the Department.

Respondents further ask guidance as to how to compute the 5-day holding period, but there is no ambiguity in the Act and regulations.

Section 5 of the Act provides (7 U.S.C. s 2135):

No dealer or exhibitor shall sell or otherwise dispose of any dog or cat within a period of five business days after the acquisition of such animal or within such other period as may be specified by the Secretary. . . .

Section 2.101(a) of the regulations provides (9 C.F.R. s 2.101(a)):

*122 Any dog or cat acquired by a dealer [footnote omitted] or exhibitor shall be held by him, under his supervision and control, for a period of not less than 5 business days after acquisition of such animal. . . .

Under the plain language of the Act and regulations, the holding period must consist of the first 5 full business days after the animals are acquired. The day of acquisition and the day of disposition cannot be included in those 5 days. The day on which the animals are acquired is not a day after the animals are acquired. A part of a day is less than a day. Obviously, a period of 4 days and a part of a day is less than 5 days.

For the foregoing reasons, the following order should be issued.

Order

Respondents E. Lee Cox and Becky Cox, their agents and employees, directly or through any corporate or other device, shall comply with each and every provision of the Animal Welfare Act, 7 U.S.C. ss 2131-2156, and its regulations at 9 C.F.R. ss 1.1- 2.130, and shall cease and desist from any violations of the Act and regulations including:

1. Failing to retain possession and control of all dogs until such animals are at least 8 weeks of age and have been weaned as required by 9 C.F.R. s 2.130;

**6 2. Failing to hold dogs for a period of not less than 5 business days after acquisition of such animals as required by 7 U.S.C. s 2135 and 9 C.F.R. s 2.101;

3. Failing to keep and maintain records which fully and correctly disclose the necessary information concerning dogs purchased, acquired, held, or otherwise in their possession and control as required by 7 U.S.C. s 2140 and 9 C.F.R. s 2.75; and

4. Failing to allow APHIS officials to inspect Respondents' facility and records as required by 7 U.S.C. s 2146 and 9 C.F.R. s 2.126.

Respondents E. Lee Cox and Becky Cox are assessed a civil penalty of $12,000 to be paid no later than the 90th day after service of this order, by certified check or money order, payable to the Treasurer of the United States, *123 and sent to Robert A. Ertman, Esq., United States Department of Agriculture, Office of the General Counsel, Room 2014, South Building, Washington, D.C. 20250-1400.

Respondents' license is suspended for 90 days and thereafter until respondents demonstrate to APHIS that their activities comply with the Act and its regulations and standards. When respondents demonstrate to APHIS that they are in compliance with the Act and its regulations and standards, a supplemental order terminating the suspension will be issued upon motion of APHIS.

The cease and desist provisions of this order shall become effective on 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. ss 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 The first day's transcript pages were numbered 1 through 121. Instead of beginning the numbering of the second day's transcript at page 122, a different court reporter numbered those pages 1 through 101. To distinguish the page numbers in this Decision, the pages of the first day's transcript will be designated as TR I-(page number) and the pages of the second day will be designated as TR-II-(page number). Complainant's exhibits will be designated as CX- and Respondents' exhibits will be designated as RX-.

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).

 

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