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

In re: VOLPE VITO, INC., d/b/a FOUR BEARS WATER PARK AND RECREATION AREA
United States
56 Agric. Dec. 166 (1997)


Case Details
Printable Version
Summary:   While corrections are to be encouraged and may be taken into account when determining sanction to be imposed, even immediate correction of violation does not operate to eliminate fact that violation occurred and does not provide basis for dismissal of alleged violation.

Judge Initial Decision issued by Paul Kane, Administrative Law Judge. Decision and Order issued by William G. Jenson, Judicial Officer. delivered the opinion of the court.


Opinion of the Court:

    *2 This case is a disciplinary proceeding under the Animal Welfare Act, as amended, (7 U.S.C. §§ 2131-2159) (hereinafter the Animal Welfare Act), and the Regulations and Standards issued under the Animal Welfare Act, (9 C.F.R. §§ 1.1-3.142) (hereinafter Regulations and Standards). The proceeding was instituted pursuant to the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary, (7 C.F.R. §§ 1.130-.151), and the Rules of Practice Governing Proceedings Under the Animal Welfare Act, (9 C.F.R. §§ 4.1-.11) (hereinafter the Rules of Practice), by a Complaint filed on March 1, 1994, by the Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture (hereinafter Complainant). [FN1]

   The Complaint alleges that Volpe Vito, Inc., d/b/a Four Bears Water Park and Recreation Area (hereinafter Respondent), willfully violated the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act. On March 22, 1994, Mr. Louis Stramaglia, president of Respondent, filed an Answer on behalf of Respondent admitting the allegations in paragraph I of the Complaint and denying the allegations in paragraphs II-X of the Complaint. On April 13, 1994, George M. Foote, Esq., Leslie M. Alden, Esq., and the law firm of Verner, Liipfert, Bernhard, McPherson and Hand, McLean, Virginia, entered an appearance on behalf of Respondent.

   The ALJ presided over a hearing on August 16-17, 1994, in Detroit, Michigan. Sharlene A. Deskins, Esq., Office of the General Counsel, United States Department of Agriculture (hereinafter USDA), represented Complainant. Leslie M. Alden, Esq., represented Respondent. On January 27, 1995, counsel for Respondent filed a Motion Seeking Leave to Withdraw as counsel for Respondent, which was granted by the ALJ on February 2, 1995.

   On September 15, 1995, the ALJ issued an Initial Decision and Order revoking Respondent's Animal Welfare Act license and directing Respondent to cease and desist from various practices.

   On November 17, 1995, Respondent appealed to the Judicial Officer to whom authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 has been delegated. (7 C.F.R. § 2.35.) [FN2] On January 5, 1996, Complainant filed Complainant's Appeal of Decision and Order and Brief in Support of the Complainant's Appeal; Complainant's Opposition to the Respondent's Appeal (hereinafter Complainant's Appeal). On March 11, 1996, Respondent filed Respondent's Response in Opposition to Complaintant's [sic] Appeal of Decision and Order; and, Respondent's Response to Complaintant's [sic] Appeal of Respondent's Appeal (hereinafter Respondent's Response), and on March 13, 1996, Complainant filed Complainant's Response to Respondent's Pleadings. On March 15, 1996, the case was referred to the Judicial Officer for decision.

   Based upon a careful consideration of the record in this case, I agree with the ALJ that Respondent willfully violated the Animal Welfare Act and the Regulations. Specifically, I agree with the ALJ's conclusions that Respondent failed to maintain complete records in violation of section 10 of the Animal Welfare Act, (7 U.S.C. § 2140), and section 2.75(b)(1) of the Regulations, (9 C.F.R. § 2.75(b)(1)), as alleged in paragraphs III(A), [FN3] IV(A), V(A), and VI(A) of the Complaint and refused to allow the Animal and Plant Health Inspection Service (hereinafter APHIS), USDA, to inspect Respondent's animals, facilities, and records in violation of section 16 of the Animal Welfare Act, (7 U.S.C. § 2146), and section 2.126 of the Regulations, (9 C.F.R. § 2.126), as alleged in paragraphs III(C) and X(A) of the Complaint. (Initial Decision and Order at 27.)

    *3 However, I agree with Complainant that the ALJ dismissed many violations alleged in the Complaint that Complainant has proven by at least a preponderance of the evidence. [FN4] Specifically, I agree that Complainant has carried its burden of proof by a preponderance of the evidence that Respondent violated the Animal Welfare Act, the Regulations, and the Standards, as alleged in paragraphs II(A); II(B); II(C)(1)-(6), (8); III(B); III(D)(1)-(2), (4)-(5), (7); IV(B); IV(C)(1); V(B)(1)-(4); VI(B)(1)-(2); VII(B); VII(C)(1)-(4); VIII(A)(1)-(2), (5)-(7); IX(B)(2)-(4), (6); X(B); and X(C)(2), (5)-(7), (9)- (11) of the Complaint.

   While the Complainant has a prima facie case with respect to the violations alleged in paragraphs II(C)(7), (9); III(D)(3), (6); IV(C)(2)-(6); V(B)(5)-(6); VII(A); VII(C)(5)-(6); VIII(A)(4); IX(A); IX(B)(1), (5); and X(C)(1), (3)-(4), (8) of the Complaint, I find that the evidence is not as strong as that customarily necessary in these types of cases to support reversal of the ALJ. Further, I find that Complainant does not have a prima facie case with respect to the violation alleged in paragraph VIII(A)(3) of the Complaint.

   Since I found numerous violations not found by the ALJ, and I disagree with much of the ALJ's discussion, I have not adopted the ALJ's Initial Decision and Order as the final Decision and Order.

Applicable Statutory Provisions, Regulations, and Standards

   7 U.S.C.:

   § 2140. Recordkeeping by dealers, exhibitors, research facilities, intermediate handlers, and carriers

   Dealers and exhibitors shall make and retain for such reasonable period of time as the Secretary may prescribe, such records with respect to the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe. . . . Such records shall be made available at all reasonable times for inspection and copying by the Secretary.

7 U.S.C. § 2140. 

   § 2146. Administration and enforcement by Secretary

   (a) Investigations and inspections

   The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer, exhibitor, 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. . . .

7 U.S.C. § 2146(a). 

   9 C.F.R.:

PART 2 -- REGULATIONS

   . . . .

SUBPART D--ATTENDING VETERINARIAN AND ADEQUATE VETERINARY CARE

   § 2.40 Attending veterinarian and adequate veterinary care (dealers and exhibitors).

    *4 (a) Each dealer or exhibitor shall have an attending veterinarian who shall provide adequate veterinary care to its animals in compliance with this section.

   (1) Each dealer and exhibitor shall employ an attending veterinarian under formal arrangements. In the case of a part-time attending veterinarian or consultant arrangements, the formal arrangements shall include a written program of veterinary care and regularly scheduled visits to the premises of the dealer or exhibitor; and

   (2) Each dealer and exhibitor shall assure that the attending veterinarian has appropriate authority to ensure the provision of adequate veterinary care and to oversee the adequacy of other aspects of animal care and use.

   (b) Each dealer or exhibitor shall establish and maintain programs of adequate veterinary care that include:

   (1) The availability of appropriate facilities, personnel, equipment, and services to comply with the provisions of this subchapter;

   (2) The use of appropriate methods to prevent, control, diagnose, and treat diseases and injuries, and the availability of emergency, weekend, and holiday care;

   (3) Daily observation of all animals to assess their health and well-being; Provided, however, That daily observation of animals may be accomplished by someone other than the attending veterinarian; and Provided, further, That a mechanism of direct and frequent communication is required so that timely and accurate information on problems of animal health, behavior, and well-being is conveyed to the attending veterinarian;

   (4) Adequate guidance to personnel involved in the care and use of animals regarding handling, immobilization, anesthesia, analgesia, tranquilization, and euthanasia; and

   (5) Adequate pre-procedural and post-procedural care in accordance with established veterinary medical and nursing procedures.

9 C.F.R. § 2.40. 

   . . . .

SUBPART G--RECORDS

   § 2.75 Records: Dealers and exhibitors.

   . . . .

   (b) (1) Every . . . exhibitor shall make, keep, and maintain records or forms which fully and correctly disclose the following information concerning animals other than dogs and cats, purchased or otherwise acquired, owned, held, leased, or otherwise in his or her possession or under his or her control, or which is transported, sold, euthanized, or otherwise disposed of by that dealer or exhibitor. The records shall include any offspring born of any animal while in his or her possession or under his or her control.

   (i) The name and address of the person from whom the animals were purchased or otherwise acquired;

   (ii) The USDA license or registration number of the person if he or she is licensed or registered under the Act;

   (iii) The vehicle license number and state, and the driver's license number and state of the person, if he or she is not licensed or registered under the Act;

   (iv) The name and address of the person to whom an animal was sold or given;

    *5 (v) The date of purchase, acquisition, sale, or disposal of the animal(s);

   (vi) The species of the animal(s); and

   (vii) The number of animals in the shipment.

9 C.F.R. § 2.75(b)(1). 

   . . . .

SUBPART H--COMPLIANCE WITH STANDARDS AND HOLDING PERIOD

   § 2.100 Compliance with standards.

   (a) Each dealer, exhibitor, operator of an auction sale, and intermediate handler shall comply in all respects with the regulations set forth in part 2 and the standards set forth in part 3 of this subchapter for the humane handling, care, treatment, housing, and transportation of animals.

9 C.F.R. § 2.100(a). 

   . . . .

SUBPART I--MISCELLANEOUS

   . . . .

   § 2.126 Access and inspection of records and property.

   (a) Each dealer, exhibitor, intermediate handler, or carrier, shall, during business hours, allow APHIS officials:

   (1) To enter its place of business;

   (2) To examine records required to be kept by the Act and the regulations in this part;

   (3) To make copies of the records;

   (4) To inspect and photograph the facilities, property and animals, as the APHIS officials consider necessary to enforce the provisions of the Act, the regulations and the standards in this subchapter; and

   (5) To document, by the taking of photographs and other means, conditions and areas of noncompliance.

   (b) The use of a room, table, or other facilities necessary for the proper examination of the records and inspection of the property or animals shall be extended to APHIS officials by the dealer, exhibitor, intermediate handler or carrier.

9 C.F.R. § 2.126. 

   . . . .

   § 2.131 Handling of animals.

   (a) (1) Handling of all animals shall be done as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort.

9 C.F.R. § 2.131(a)(1). 

   . . . .

PART 3--STANDARDS

   . . . .

SUBPART D--SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT, AND TRANSPORTATION OF NONHUMAN PRIMATES

FACILITIES AND OPERATING STANDARDS

   . . . .

   § 3.75 Housing facilities, general.

   . . . .

   (b) Condition and site. Housing facilities and areas used for storing animal food or bedding must be free of any accumulation of trash, waste material, junk, weeds, and other discarded materials. Animal areas inside of housing facilities must be kept neat and free of clutter, including equipment, furniture, or stored material, but may contain materials actually used and necessary for cleaning the area, and fixtures and equipment necessary for proper husbandry practices and research needs. Housing facilities other than those maintained by research facilities and Federal research facilities must be physically separated from any other businesses. If a housing facility is located on the same premises as any other businesses, it must be physically separated from the other businesses so that animals the size of dogs, skunks, and raccoons, are prevented from entering it.

    *6 (c) Surfaces--(1) General requirements. The surfaces of housing facilities--including perches, shelves, swings, boxes, houses, dens, and other furniture-type fixtures or objects within the facility--must be constructed in a manner and made of materials that allow them to be readily cleaned and sanitized, or removed or replaced when worn or soiled. Furniture-type fixtures or objects must be sturdily constructed and must be strong enough to provide for the safe activity and welfare of nonhuman primates. Floors may be made of dirt, absorbent bedding, sand, gravel, grass, or other similar material that can be readily cleaned, or can be removed or replaced whenever cleaning does not eliminate odors, diseases, pests, insects, or vermin. Any surfaces that come in contact with nonhuman primates must:

   (i) Be free of excessive rust that prevents the required cleaning and sanitization, or that affects the structural strength of the surface; and

   (ii) Be free of jagged edges or sharp points that might injure the animals.

   . . . .

   (3) Cleaning. Hard surfaces with which nonhuman primates come in contact must be spot-cleaned daily and sanitized in accordance with § 3.84 of this subpart to prevent accumulation of excreta or disease hazards. If the species scent mark, the surfaces must be sanitized or replaced at regular intervals as determined by the attending veterinarian in accordance with generally accepted professional and husbandry practices. Floors made of dirt, absorbent bedding, sand, gravel, grass, or other similar material, and planted enclosures must be raked or spot-cleaned with sufficient frequency to ensure all animals the freedom to avoid contact with excreta. Contaminated material must be removed or replaced whenever raking and spot cleaning does not eliminate odors, diseases, insects, pests, or vermin infestation. All other surfaces of housing facilities must be cleaned and sanitized when necessary to satisfy generally accepted husbandry standards and practices. Sanitization may be done by any of the methods provided in § 3.84(b)(3) of this subpart for primary enclosures.

   . . . .

   (e) Storage. Supplies of food and bedding must be stored in a manner that protects the supplies from spoilage, contamination, and vermin infestation. The supplies must be stored off the floor and away from the walls, to allow cleaning underneath and around the supplies. Food requiring refrigeration must be stored accordingly, and all food must be stored in a manner that prevents contamination and deterioration of its nutritive value. Only the food and bedding currently being used may be kept in animal areas, and when not in actual use, open food and bedding supplies must be kept in leakproof containers with tightly fitting lids to prevent spoilage and contamination. Substances that are toxic to the nonhuman primates but that are required for normal husbandry practices must not be stored in food storage and preparation areas, but may be stored in cabinets in the animal areas.

    *7 (f) Drainage and waste disposal. Housing facility operators must provide for regular and frequent collection, removal, and disposal of animal and food wastes, bedding, dead animals, debris, garbage, water, and any other fluids and wastes, in a manner that minimizes contamination and disease risk. Housing facilities must be equipped with disposal facilities and drainage systems that are constructed and operated so that animal wastes and water are rapidly eliminated and the animals stay dry. Disposal and drainage systems must minimize vermin and pest infestation, insects, odors, and disease hazards. All drains must be properly constructed, installed, and maintained. If closed drainage systems are used, they must be equipped with traps and prevent the backflow of gases and the backup of sewage onto the floor. If the facility uses sump ponds, settlement ponds, or other similar systems for drainage and animal waste disposal, the system must be located far enough away from the animal area of the housing facility to prevent odors, diseases, insects, pests, and vermin infestation. If drip or constant flow watering devices are used to provide water to the animals, excess water must be rapidly drained out of the animal areas by gutters or pipes so that the animals stay dry. Standing puddles of water in animal areas must be mopped up or drained so that the animals remain dry. Trash containers in housing facilities and in food storage and food preparation areas must be leakproof and must have tightly fitted lids on them at all times. Dead animals, animal parts, and animal waste must not be kept in food storage or food preparation areas, food freezers, food refrigerators, and animal areas.

9 C.F.R. § 3.75(b), (c)(1), (c)(3), (e), (f). 

   § 3.76 Indoor housing facilities.

   (a) Heating, cooling, and temperature. Indoor housing facilities must be sufficiently heated and cooled when necessary to protect nonhuman primates from temperature extremes and to provide for their health and well-being. The ambient temperature in the facility must not fall below 45 £ F (7.2 £C) for more than 4 consecutive hours when nonhuman primates are present, and must not rise above 85 £F (29.5 £>>C) for more than 4 consecutive hours when nonhuman primates are present. The ambient temperature must be maintained at a level that ensures the health and well-being of the species housed, as directed by the attending veterinarian, in accordance with generally accepted professional and husbandry practices.

9 C.F.R. § 3.76(a). 

   . . . .

   § 3.78 Outdoor housing facilities.

   . . . .

   (b) Shelter from the elements. Outdoor housing facilities for nonhuman primates must provide adequate shelter from the elements at all times. It must provide protection from the sun, rain, snow, wind, and cold, and from any weather conditions that may occur. The shelter must safely provide heat to the nonhuman primates to prevent the ambient temperature from falling below 45 £>>F (7.2 £ C), except as directed by the attending veterinarian and in accordance with generally accepted professional and husbandry practices.

*8  9 C.F.R. § 3.78(b). 

   . . . .

   § 3.80 Primary enclosures.

   Primary enclosures for nonhuman primates must meet the following minimum requirements:

   (a) General requirements. . . .

   (2) Primary enclosures must be constructed and maintained so that they:

   . . . .

   (ix) Enable all surfaces in contact with nonhuman primates to be readily cleaned and sanitized in accordance with § 3.84(b)(3) of this subpart, or replaced when worn or soiled[.]

 

9 C.F.R. § 3.80(a)(2)(ix). 

§ 3.81 Environmental enhancement to promote psychological well-being.

   Dealers, exhibitors, and research facilities must develop, document, and follow an appropriate plan for environmental enhancement adequate to promote the psychological well-being of nonhuman primates. The plan must be in accordance with the currently accepted professional standards as cited in appropriate professional journals or reference guides, and as directed by the attending veterinarian. This plan must be made available to APHIS upon request. . . .

9 C.F.R. § 3.81. 

ANIMAL HEALTH AND HUSBANDRY STANDARDS

   § 3.82 Feeding.

   (a) The diet for nonhuman primates must be appropriate for the species, size, age, and condition of the animal, and for the conditions in which the nonhuman primate is maintained, according to generally accepted and professional and husbandry practices and nutritional standards. The food must be clean, wholesome, and palatable to the animals. It must be of sufficient quantity and have sufficient nutritive value to maintain a healthful condition and weight range of the animal and to meet its normal daily nutritional requirements.

   . . . .

   (d) Food and food receptacles, if used, must be located so as to minimize any risk of contamination by excreta and pests. Food receptacles must be kept clean and must be sanitized in accordance with the procedures listed in § 3.84(b)(3) of this subpart at least once every 2 weeks. Used food receptacles must be sanitized before they can be used to provide food to a different nonhuman primate or social grouping of nonhuman primates. Measures must be taken to ensure there is no molding, deterioration, contamination, or caking or wetting of food placed in self-feeders.

9 C.F.R. § 3.82(a), (d). 

   . . . .

   § 3.84 Cleaning, sanitization, housekeeping, and pest control.

   (a) Cleaning of primary enclosures. Excreta and food waste must be removed from inside each indoor primary enclosure daily and from underneath them as often as necessary to prevent an excessive accumulation of feces and food waste, to prevent the nonhuman primates from becoming soiled, and to reduce disease hazards, insects, pests, and odors. Dirt floors, floors with absorbent bedding, and planted areas in primary enclosures must be spot-cleaned with sufficient frequency to ensure all animals the freedom to avoid contact with excreta, or as often as necessary to reduce disease hazards, insects, pests, and odors. When steam or water is used to clean the primary enclosure, whether by hosing, flushing, or other methods, nonhuman primates must be removed, unless the enclosure is large enough to ensure the animals will not be harmed, wetted, or distressed in the process. Perches, bars, and shelves must be kept clean and replaced when worn. If the species of the nonhuman primates housed in the primary enclosure engages in scent marking, hard surfaces in the primary enclosure must be spot-cleaned daily.

    *9 (b) Sanitization of primary enclosures and food and water receptacles.

   (1) A used primary enclosure must be sanitized in accordance with this section before it can be used to house another nonhuman primate or group of nonhuman primates.

   (2) Indoor primary enclosures must be sanitized at least once every 2 weeks and as often as necessary to prevent an excessive accumulation of dirt, debris, waste, food waste, excreta, or disease hazard, using one of the methods prescribed in paragraph (b)(3) of this section. However, if the species of nonhuman primates housed in the primary enclosure engages in scent marking, the primary enclosure must be sanitized at regular intervals determined in accordance with generally accepted professional and husbandry practices.

   (3) Hard surfaces of primary enclosures and food and water receptacles must be sanitized using one of the following methods:

   (i) Live steam under pressure;

   (ii) Washing with hot water (at least 180 £F (82.2 £>>C)) and soap or detergent, such as in a mechanical cage washer;

   (iii) Washing all soiled surfaces with appropriate detergent solutions or disinfectants, or by using a combination detergent/disinfectant product that accomplishes the same purpose, with a thorough cleaning of the surfaces to remove organic material, so as to remove all organic material and mineral buildup, and to provide sanitization followed by a clean water rinse.

   (4) Primary enclosures containing material that cannot be sanitized using the methods provided in paragraph (b)(3) of this section, such as sand, gravel, dirt, absorbent bedding, grass, or planted areas, must be sanitized by removing the contaminated material as necessary to prevent odors, diseases, pests, insects, and vermin infestation.

   (c) Housekeeping for premises. Premises where housing facilities are located, including buildings and surrounding grounds, must be kept clean and in good repair in order to protect the nonhuman primates from injury, to facilitate the husbandry practices required in this subpart, and to reduce or eliminate breeding and living areas for rodents, pests, and vermin. Premises must be kept free of accumulations of trash, junk, waste, and discarded matter. Weeds, grass, and bushes must be controlled so as to facilitate cleaning of the premises and pest control.

9 C.F.R. § 3.84(a), (b), (c). 

   . . . .

SUBPART F--SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT, AND TRANSPORTATION OF WARMBLOODED ANIMALS OTHER THAN DOGS, CATS, RABBITS, HAMSTERS, GUINEA PIGS, NONHUMAN PRIMATES, AND MARINE MAMMALS

FACILITIES AND OPERATING STANDARDS

   § 3.125 Facilities, general.

   (a) Structural strength. The facility must be constructed of such material and of such strength as appropriate for the animals involved. The indoor and outdoor housing facilities shall be structurally sound and shall be maintained in good repair to protect the animals from injury and to contain the animals.

    *10 . . . .

   (c) Storage. Supplies of food and bedding shall be stored in facilities which adequately protect such supplies against deterioration, molding, or contamination by vermin. Refrigeration shall be provided for supplies of perishable food.

 

9 C.F.R. § 3.125(a), (c). 

  

   § 3.126 Facilities, indoor.

   (a) Ambient temperatures. Temperature in indoor housing facilities shall be sufficiently regulated by heating or cooling to protect the animals from the extremes of temperature, to provide for their health and to prevent their discomfort. The ambient temperature shall not be allowed to fall below nor rise above temperatures compatible with the health and comfort of the animal.

   . . . .

   (c) Lighting. Indoor housing facilities shall have ample lighting, by natural or artificial means, or both, of good quality, distribution, and duration as appropriate for the species involved. Such lighting shall be uniformly distributed and of sufficient intensity to permit routine inspection and cleaning. Lighting of primary enclosures shall be designed to protect the animals from excessive illumination.

9 C.F.R. § 3.126(a), (c). 

   § 3.127 Facilities, outdoor.

   . . . .

   (b) Shelter from inclement weather. Natural or artificial shelter appropriate to the local climatic conditions for the species concerned shall be provided for all animals kept outdoors to afford them protection and to prevent discomfort to such animals. . . .

   (c) Drainage. A suitable method shall be provided to rapidly eliminate excess water. . . .

9 C.F.R. § 3.127(b), (c). 

   § 3.128 Space requirements.

   Enclosures shall be constructed and maintained so as to provide sufficient space to allow each animal to make normal postural and social adjustments with adequate freedom of movement. Inadequate space may be indicated by evidence of malnutrition, poor condition, debility, stress, or abnormal behavior patterns.

9 C.F.R. § 3.128. 

ANIMAL HEALTH AND HUSBANDRY STANDARDS

   § 3.129 Feeding.

   (a) The food shall be wholesome, palatable, and free from contamination and of sufficient quantity and nutritive value to maintain all animals in good health. The diet shall be prepared with consideration for the age, species, condition, size, and type of the animal. Animals shall be fed at least once a day except as dictated by hibernation, veterinary treatment, normal fasts, or other professionally accepted practices.

9 C.F.R. § 3.129(a). 

   § 3.130 Watering.

   If potable water is not accessible to the animals at all times, it must be provided as often as necessary for the health and comfort of the animal. Frequency of watering shall consider age, species, condition, size, and type of the animal. All water receptacles shall be kept clean and sanitary.

9 C.F.R. § 3.130. 

   § 3.131 Sanitation.

   (a) Cleaning of enclosures. Excreta shall be removed from primary enclosures as often as necessary to prevent contamination of the animals contained therein and to minimize disease hazards and to reduce odors. When enclosures are cleaned by hosing or flushing, adequate measures shall be taken to protect the animals confined in such enclosures from being directly sprayed with the stream of water or wetted involuntarily.

    *11 . . . .

   (c) Housekeeping. Premises (buildings and grounds) shall be kept clean and in good repair in order to protect the animals from injury and to facilitate the prescribed husbandry practices set forth in this subpart. Accumulations of trash shall be placed in designated areas and cleared as necessary to protect the health of the animals.

   (d) Pest control. A safe and effective program for the control of insects, ectoparasites, and avian and mammalian pests shall be established and maintained.

9 C.F.R. § 3.131(a), (c), (d). 

   § 3.132 Employees.

   A sufficient number of adequately trained employees shall be utilized to maintain the professionally acceptable level of husbandry practices set forth in this subpart. Such practices shall be under a supervisor who has a background in animal care.

9 C.F.R. § 3.132. 

   . . . .

TRANSPORTATION STANDARDS

   . . . .

   § 3.137 Primary enclosures used to transport live animals.

   No dealer, research facility, exhibitor, or operator of an auction sale shall offer for transportation or transport, in commerce, any live animal in a primary enclosure which does not conform to the following requirements:

   (a) Primary enclosures, such as compartments, transport cages, cartons, or crates, used to transport live animals shall be constructed in such a manner that (1) the structural strength of the enclosure shall be sufficient to contain the live animals and to withstand the normal rigors of transportation[.] . . .

9 C.F.R. § 3.137(a)(1). 

   § 3.138 Primary conveyances (motor vehicle, rail, air, and marine).

   (a) The animal cargo space of primary conveyances used in transporting live animals shall be designed and constructed to protect the health, and ensure the safety and comfort of the live animals contained therein at all times.

9 C.F.R. § 3.138(a). 

Discussion

   Respondent, Volpe Vito, Inc., doing business as Four Bears Water Park and Recreation Area, is a corporation whose address is 3000 Auburn Road, Utica, Michigan 48087. (Answer ¶ I(A); CX 2, 10.) Four Bears Water Park and Recreation Area covers approximately 125 acres in Utica, Michigan. (Tr. 425.) Respondent has been in business since 1983 and has exhibited animals for "[a]bout seven years." (Tr. 384.) Four Bears Water Park and Recreation Area consists of two separate sites that are regularly inspected by APHIS. Site one is the water park that is open to the public from Memorial Day to Labor Day, (Tr. 398-99), and located at 3000 Auburn Road, Utica, Michigan. Site two is a winter holding area for the animals when the water park is closed, (Tr. 32), and located at 4751 22 Mile Road, Utica, Michigan. Approximately 100,000 people visit Four Bears Water Park and Recreation Area during the summer, (Tr. 425). While the price of admission ranges from $11.95 to $0 per person, the average price for admission is $5 per person, (Tr. 425).

   At all times material to this proceeding, Respondent was licensed and operating as an exhibitor as defined in the Animal Welfare Act and the Regulations, (Answer ¶ I(B)). When Respondent became licensed, and annually thereafter, Respondent received copies of the Animal Welfare Act, the Regulations, and the Standards and agreed in writing to comply with the Animal Welfare Act, the Regulations, and the Standards, (Answer ¶ I(C)). From September 19, 1991, through February 1, 1994, Respondent's premises was inspected on nine different occasions by Dr. Lisa Dellar, a veterinarian employed by APHIS. Dr. Dellar described her background and experience with APHIS and the Animal Welfare Act, as follows:

    *12 BY MS. DESKINS:

   Q. Dr. Dellar, could you please tell us about your educational background since high school?

   [BY DR. DELLAR:]

   A. Since high school I've received a Bachelor's in Science, Animal Science, at Michigan State University. And from there I went on to the College of Veterinary Medicine and I graduated with a Doctorate in Veterinary Medicine in 1983.

   Q. Okay. And what did you do after graduating from veterinary school?

   A. In 1983 I went into private practice which was mostly 90 percent small animals and 10 percent large animals. I practiced for about three years. Then I left private practice and went into industry where I was a laboratory animal veterinarian working on cancer research at Dow Chemical in Midland, Michigan.

   After working a year at Dow Chemical I applied to the United States Department of Agriculture and got a job -- entered into the PVPC Program which is an accelerated program for veterinarians given special training and special overview for the USDA. And at the end of the program I was given an option of where I would like to go and I picked veterinary services in Michigan.

   Q. Okay. Now, what are your job duties -- what year did you start to work for the Animal and Plant Health Inspection Service?

   A. I started in September of 1987.

   Q. Okay. And what are your current job duties?

   A. Currently I'm with the Regulatory Enforcement of Animal Care. I perform animal welfare inspections throughout the State of Michigan, both the Lower and the Upper Peninsula, and I also enforce the Horse Protection Act throughout the United States.

   Q. Now, how long have you held this position?

   A. I have been with REAC since the origination of the agency, and it originated in October of 1988.

   Q. And REAC stands for Regulatory Enforcement of Animal Care?

   A. Correct.

   Q. Can you tell us what training courses you've had relative to the Animal Welfare Act?

   A. I've had several courses during my PVPC training and in REAC. I have attended the basic animal care training course. I have attended the animal transportation course. I've attended the records keeping inspection course. And the best course which I felt really gave me insight into my job was the zoo animal inspection course held at the Atlanta Zoo which focused mainly on primates and elephants.

   Q. How long -- approximately how many inspections of animal dealers or exhibitors under the Animal Welfare Act do you perform per year?

   A. I, approximately, inspect 350 sites a year. And approximately two-thirds of those -- a third to two-thirds of those are dealers and exhibitors.

   Q. Okay. And of those, what number -- just approximately, what number of those involve people that have exotic animals?

   A. Out of all of my dealers and exhibitors I would have to say 75 percent -- close to 75 percent have exotic or wild animals.

   Q. And can you please define for us what the term "exotic animals" means under the Animal Welfare Act?

    *13 A. The Department defines "exotic" as animals that are not native to the United States and are imported from other countries.

 

Tr. 12-14. 

  

   Immediately after each inspection of Respondent's premises, Dr. Dellar completed APHIS inspection forms on which Dr. Dellar recorded the findings she made during each inspection of Respondent's premises. [FN5] Dr. Dellar described the method by which she inspected Respondent's premises and completed the APHIS inspection forms, as follows:

   [BY MS. DESKINS:]

   Q. Okay. Dr. Dellar, can you just tell us what your normal inspection procedures are?

   [BY DR. DELLAR:]

   A. Sure. Normally I arrive at a facility and tell the facility that I'm there, and I'm there to conduct an Animal Welfare Inspection. After notifying them, I'm usually assigned to someone who will then take me around and tour the animal facilities. I'm required to look at every single animal, and I do. If questions arise I would look at medical records at that time. I would ask questions and that may lead me to other areas. I check food, storage areas; any area that's animal related.

   Once I've completely looked at the physical facility, then I come back and I check the records. These would be acquisition disposition forms and animal inventory forms. If there are further questions I may talk to the attending veterinarian, I may talk to the owner or the caretakers, depending on what my inspection turns up.

   At the end I write a comprehensive report detailing what I've found and the correction dates for the non-compliant items. Then I conduct an exit interview with either the person who's been assigned to take me around or the owner of the facility. And I go over every single point, what I found, when the correction date is and make sure that they both can read my writing, because my writing isn't all that great, and that they understand what they're being cited for.

   Then I ask for a signature so that they can obtain a copy of the inspection form, and then I leave.

   . . . .

   Q. Okay. And could you please just -- let's just go over what's contained in the inspection form. Why don't you start with the top of this particular form?

   A. Okay. This is the old-style inspection form. Recently, the Department has changed over forms. This is the original style that we had to work with. In block number one is the facility's license number. Thirty-four means that it's in the State of Michigan. C, means that they are a licensed exhibitor. And then the last three digits are their arbitrary number that has been assigned to them as an identification.

   Block two tells me how many pages my report contains. Block three tells me what type of facility it is again, and I marked "Exhibitor." Block four tells me the date of the inspection. Block five tells me the time that I arrived at the facility. Block six tells me the date of the last inspection. And block seven tells me the time of the last inspection. Block eight tells me the name and mailing address of the facility, which is Volpe Vito; their mailing address is in Rochester Hills. Block nine tells me what they're doing business as, and it also tells me that this is their first site and their address of their first site is 3000 Auburn Road in Utica, Michigan.

    *14 Q. Okay. Now let's look at blocks 12 through 45, can you just describe what those blocks are meant to show?

   A. Lines 12 through 45 are the standards that I inspect, and the numbers that correspond under the animal tie -- under the animal listings are the exact paragraphs where that particular standard can be found.

   So, if you look under "primates," and you look at Line 14, "Structural strength," you'll see the 3.75. And that's the paragraph of the regulation that covers structural strength.

   So, in this report, as you can see, way over under column M, I wrote in "zebras, 3.125" has been crossed off and on this report that means that that particular standard for zebras was in compliance. NS as I wrote in means "not seen," that means that at that particular inspection it just wasn't there or I failed to look at it, or something along that line.

   NA means "non-applicable," that means I did not see -- the facility doesn't have that particular item at that time. And if I circle it, it means that that particular standard and that particular paragraph has a narrative written on the next page.

   Q. Okay. Let's look at the next page. This is page two of CX3. Now, for all the inspection forms if you circled something on the front, you would then write a narrative on the next page?

   A. Correct.

   Q. Okay. Now there's also some boxes 50 through 54, could you just explain what those boxes are?

   A. Fifty is the box that I sign saying that I prepared this report. Fifty-three and 54 are a signature of the person who receives a copy of the report, their title and the date that they receive it.

   Q. Also, there's a 57, can you tell us what that box typically has?

   A. That box is my supervisor. After every report I mail it into my sector office and then my supervisor goes over everything that I have written, making sure that I was correct in my citations, making sure that I actually had the ability -- the legal ability to cite what I did.

   Q. Okay. Now, also you said in this there was a site number one and a number two. So in cases where there are two sites, you prepared two different inspection reports?

   A. Correct.

Tr. 14-15, 17-20. 

   Dr. Dellar testified that the manner in which she completed the APHIS inspection forms did not change when she began using the new form, [FN6] as follows:

   [BY MS. DESKINS:]

   Q. Okay. Now, Dr. Dellar, this form is a little different from the other inspection forms that you've looked at before. Can you tell us what the differences are?

   [BY DR. DELLAR:]

   A. After the Department had some regulation changes they went ahead and revised the inspection form, made it into a normal size sheet of paper, renumbered the paragraphs because the regulations had changed and they were renumbered. Added some categories to inspect and added some research categories at the bottom. So it's a redesigned form.

   Q. Okay. Now, but when the form changed did your normal procedures also change?

    *15 A. In a way they did, because we were now inspecting new requirements like the psychological enrichment plan for the primates, dog exercise plans. So, my routine didn't change, I normally did the same things in the same manner, but I had more things to look at.

   Q. Okay. And other than that were there any other changes that you recall in your inspection procedure?

   A. No, not that I can recall.

   Q. All right. Now I noticed on this form that you circled things on the front. Was it still your procedure then to write a description on the back page?

   A. Correct.

   Q. And did you follow that procedure in this case?

   A. Yes, I did.

Tr. 50-51. 

   Each of the APHIS inspection forms on which Dr. Dellar recorded her findings was admitted into evidence. (CX 3 is a record of Dr. Dellar's findings which she completed immediately after her September 19, 1991, inspection of Respondent's premises; CX 4 is a record of Dr. Dellar's findings which she completed immediately after her January 2, 1992, inspection of Respondent's premises; CX 5 is a record of Dr. Dellar's findings which she completed immediately after her January 16, 1992, inspection of Respondent's premises; CX 8 is a record of Dr. Dellar's findings which she completed immediately after her July 15, 1992, inspection of Respondent's premises; CX 9 is a record of Dr. Dellar's findings which she completed immediately after her October 20, 1992, inspection of Respondent's premises; CX 12 is a record of Dr. Dellar's findings which she completed immediately after her August 10, 1993, inspection of Respondent's premises; CX 14 is a record of Dr. Dellar's findings which she completed immediately after her September 14, 1993, inspection of Respondent's premises; CX 19 is a record of Dr. Dellar's findings which she completed immediately after her January 3, 1994, inspection of Respondent's premises; CX 21 is a record of Dr. Dellar's findings which she completed immediately after her February 1, 1994, inspection of Respondent's premises.) I find each of the inspection forms completed by Dr. Dellar to be reliable, probative, and substantial evidence of her findings at Respondent's premises.

   Paragraphs II(A), III(A), IV(A), V(A), VI(A), and VII(A) of the Complaint allege that on September 19, 1991, January 2, 1992, January 16, 1992, July 15, 1992, October 20, 1992, and August 10, 1993, respectively, APHIS inspected Respondent's premises and records and found that Respondent had failed to maintain complete records showing the acquisition, disposition, and identification of animals, in willful violation of 7 U.S.C. § 2140 and 9 C.F.R. § 2.75(b)(1). Although the humane treatment of animals by dealers, exhibitors, and others is a principal purpose of the Animal Welfare Act, the Act also requires exhibitors and others to make and retain records which show acquisitions, disposition, and identification. These records are an important indicator of the level of animal husbandry and veterinary care provided by exhibitors. In re Big Bear Farm, Inc., supra, 55 Agric. Dec. at 118; In re Cecil Browning, 52 Agric. Dec. 129, 141 (1993), aff'd per curiam, 15 F.3d 1097 (11th Cir. 1994) (Table).

    *16 Each of the APHIS inspection forms, completed by Dr. Dellar immediately after her inspections of Respondent's premises on September 19, 1991, January 2, 1992, January 16, 1992, July 15, 1992, and October 20, 1992, states that Respondent's records were not complete. (CX 3 at 1 item 47, 2, 3 item 47, 4; CX 4 at 1 item 47, 2, 3 item 47, 6; CX 5 at 1 item 47, 2, 3 item 47, 4; CX 8 at 1 item 46, 2, 3 item 46, 4; CX 9 at 1 item 46, 2, 3 item 46.) Dr. Dellar testified that Respondent had a continuing problem keeping its records current, (Tr. 21-22), and that she met with at least one of Respondent's employees after each inspection in which she found that Respondent failed to maintain records in accordance with the Animal Welfare Act and the Regulations and discussed the records that are required to be maintained, (Tr. 122, 156- 57). Moreover, Mr. Stramaglia, president of Respondent and the person who oversees the operation of Four Bears Water Park and Recreation Area, (Tr. 384), testified that he did not always keep Respondent's records of animals current, as follows:

   [BY MS. ALDEN:]

   Q.All right. Now, Mr. Stramaglia, running through those inspection reports that have been submitted today, there is a constant, or maybe I should say, a recurring complaint about the facility's record keeping.

   [BY MR. STRAMAGLIA:]

   A. Yes.

   Q. Would you explain why that problem exists or existed?

   A. Well, my record keeping hasn't been the best, you know, so, but a lot of times what occurs is that we'll have animals that we've bought or we've sold, depending on the time of the year, which, like, in the spring and in the fall, and we buy farm animals for the petting zoo in the spring, and in the fall we sell them, and sometimes animals are born in between time.

   Well, I don't initially enter them into the log until I get my bill of sales and stuff from them. Sometimes they deliver the animals and the bill or sale doesn't come for a week or two later, and then I enter them in. In between time, inspector could come and they could possibly not be on the order or I don't have the paperwork to put them on. But, when I do get it, I put it on.

   What I've been trying to do now, is that -- she stated that we should get them on within a week, so I've been trying to expedite my paperwork so I would get that during the week. And then I have assigned another gentleman in my office who's actually an accountant to be able to get my records out when I'm not in the office in case they need to be inspected.

   . . . .

   Q. I'm going to show you what's previously been marked as RX-2 and ask you if you can identify this document.

   A. It's a record of animals on hand. It looks like 1991, the year 1991.

   Q. Are those the records that the park has kept for the acquisition and disposition of animals in 1991?

   A. Yes.

   Q. Let me hand to you what's previously been marked as RX-3 and ask you if you can identify this document.

   A. 1992 record on hand of animals.

    *17 Q. Please take a look at what's been marked as RX-4 and tell us whether you can identify this document.

   A. 1993 animals on hand.

   Q. That's the record of the acquisition and disposition of animals that the park has kept?

   A. Yes.

   Q. Let me show you what's been marked as RX-5 and ask you if you can identify this document.

   A. 1994 animals on hand, record of animals on hand for the USDA.

   Q. Mr. Stramaglia, even though your records may not have been up to date at the time that the inspection was made, did you later make any effort to bring your records into compliance?

   A. Yes.

Tr. 389-90, 405-06. 

   I agree with the ALJ that on January 2, 1992, January 16, 1992, July 15, 1992, and October 20, 1992, Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals, in violation of 7 U.S.C. § 2140 and 9 C.F.R. § 2.75(b)(1), as alleged in paragraphs III(A), IV(A), V(A), and VI(A) of the Complaint. (Initial Decision and Order at 16, 27, Conclusions 2-4.) Moreover, I find that the evidence clearly establishes that on September 19, 1991, Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals, in willful violation of 7 U.S.C. § 2140 and 9 C.F.R. § 2.75(b)(1), as alleged in paragraph II(A) of the Complaint.

   Dr. Dellar's inspection report, which she completed after her August 10, 1993, inspection of Respondent's premises, indicates that Dr. Dellar found that Respondent was in compliance with the records requirements in 7 U.S.C. § 2140 and 9 C.F.R. § 2.75(b)(1). (CX 12 at 1 item 46, 4 item 46.) I agree with the ALJ that Complainant has not proven by a preponderance of the evidence that on August 10, 1993, Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals, as alleged in paragraph VII(A) of the Complaint.

   Paragraphs II(B), III(B), IV(B), VII(B), and IX(A) of the Complaint allege that on September 19, 1991, [FN7] January 2, 1992, January 16, 1992, August 10, 1993, and January 3, 1994, respectively, APHIS inspected Respondent's premises and found that Respondent had failed to maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine and failed to provide veterinary care to animals in need of care, in willful violation of 9 C.F.R. § 2.40.

   Each of the APHIS inspection forms, completed by Dr. Dellar after her inspections of Respondent's premises on September 19, 1991, January 2, 1992, January 16, 1992, August 10, 1993, and January 3, 1994, specifies the manner in which Respondent failed to provide veterinary care to animals in need of care, (CX 3 at 3 item 40, 4; CX 4 at 4; CX 5 at 4; CX 12 at 4 item 48, 5; CX 19 at 1 item 48, 2-3).

   After her September 19, 1991, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

    *18 #40 Veterinary Care (2.40) The elephant needs to have her feet trimmed -- the left front was the worst. Also the elephant has a bilateral ocular discharge which needs to be evaluated by the attending veterinarian Correction: 09-20-91.

CX 3 at 4. 

   Similarly, during her August 10, 1993, inspection of site one on Respondent's premises, Dr. Dellar found that:

   #48 Vet Care (2.40) The elephants right rear and left front feet had deep cracks or fissures showing lack of timely foot care. An animal caretaker said that the feet are trimmed 2x a year. More frequent foot care prevents foot problems which can be fatal. Correct by: 08-17-93.

CX 12 at 5. 

   Mr. Walt King, the overseer of the animal department and the amusement ride department at Four Bears Water Park and Recreation Area, (Tr. 342), testified that Twiggy, the elephant that is the subject of Dr. Dellar's September 19, 1991, and August 10, 1993, inspection reports, (CX 3, 12), is provided with extensive foot care, as follows:

   [BY MS. DESKINS:]

   Q. Excuse me, Mr. King.

   Mr. King, what is the optimal foot care for elephants?

   [BY MR. KING:]

   A. Yes, ma'am, I'm familiar with that.

   Q. Okay. Can you tell us what us what the optimal care is?

   A. Yes. We're on a program with two of the people from the Detroit Zoo that work in the elephant department of the Detroit Zoo, and every three months they come out and examine and clean and trim the elephant's feet, and they are very, very good at it. They've written papers on -- from the AAZP, or whatever -- the zoological people, on the care and training of the elephant's feet and trimming and so forth like that.

   Q. And you said they're called in every three months. If the elephant's foot, Twiggy, needs foot care more often than that, are they called in?

   A. Oh, yes ma'am. They would be. Or if the lady from the USDA finds something she doesn't like, we call them in and he comes in a day or two.

Tr. 382-83. 

   Moreover, Mr. Stramaglia testified as to the foot care generally provided to Twiggy, as follows:

   [BY MS. ALDEN:]

   Q. Do you have anyone to attend to the elephant's feet?

   [BY MR. STRAMAGLIA:]

   A. Yes. We have a person that does it at the Detroit Zoo, and he comes to our facility, I think every three months, or if we call him in between and does the elephant's feet.

   . . . .

   [BY MS. DESKINS:]

   Q. Okay. So, I understand what you're saying, I'm just trying to clarify. So you're saying you don't have particular expertise in the --

   [BY MR. STRAMAGLIA:]

   A. Trimming of the feet?

   Q. Well, in the care of an elephant's foot.

   MS. ALDEN: Objection, Your Honor. That's inconsistent to what he just testified to.

   THE WITNESS: I just tried to tell you what my expertise was with the elephant and where I got my training.

   BY MS. DESKINS:

   Q. Okay. Now what I'm trying to ask about in particular, is about the elephant's feet. If you --

   A. The feet --

    *19 Q. If you don't have any --

   A. I personally have never trimmed elephant's feet. No.

   Q. Okay. Do you know about the care of their feet?

   A. Yes.

   Q. And you got that from an Army McGuire?

   A. Army McGuire, yes. Army gave me like, a six week training with elephants.

Tr. 388, 416-17. 

   Although I find that Messrs. King and Stramaglia are aware of the need to care for an elephant's feet and Respondent provides some veterinary care for its elephant's feet, Complainant has proven by a preponderance of the evidence that on September 19, 1991, and August 10, 1993, Twiggy's feet were in need of veterinary care and Respondent failed to provide veterinary care to the elephant. Further, Respondent has not rebutted the evidence that on September 19, 1991, Twiggy was in need of veterinary care for a bilateral ocular discharge and Respondent failed to provide such veterinary care. Therefore, I find that Respondent failed to provide veterinary care to an animal in need of veterinary care, in violation of 9 C.F.R. § 2.40, as alleged in paragraphs II(B) and VII(B) of the Complaint.

   During her January 2, 1992, inspection of site two on Respondent's premises, Dr. Dellar found that:

   #40 Veterinary Care (2.40) The camel was found to be bleeding from the nose/mouth. The zoo manager wanted to pour peroxide on the camel's face -- but I suggested that the peroxide would go down his nose and into his lungs. Instead the animal shall be examined by a veterinarian. Correction date: 01-02- 92 close of business.

CX 4 at 4. 

   Respondent offered nothing to rebut the evidence that the camel was in need of veterinary care on January 2, 1992, and that Respondent failed to provide veterinary care to the camel.

   After her January 16, 1992, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #40 Veterinary Care (2.40) 2 new born goats were found frozen in the goat shelter. Goat #27 had blood on her fur, was slow and listless and appeared cold (humped up and pressed next to another goat). The dead goats and the ill goat was not detected by the animal care taker. The ill goat shall be immediately taken to a veterinarian for examination by close of business.

CX 5 at 4. 

   Dr. Dellar testified that the goat that had blood on her fur was the goat that had given birth to the two new born goats which she found frozen during her January 16, 1992, inspection, that it is not unusual for a goat that has just given birth to have discharge on her hindquarters, and that the blood on the fur did not concern her, (Tr. 145.) Dr. Dellar also testified that she did not know the cause of death of the new born goats, (Tr. 145-47, 271). Moreover, Mr. Stramaglia testified as to the cause of the death of the new born goats, as follows:

   [BY MS. ALDEN:]

   Q. You heard testimony about an inspection in January of 1992, at which time it was discovered that there were two diseased kids at the barn.

    *20 [BY MR. STRAMAGLIA:]

   A. Yes, I did.

   Q. Can you tell the Court what you know about the mother goat and the condition of her milk?

   A. Well, what happened is, the following winter, that goat -- I had the people there specifically watch that goat; it was a pygmy goat and she was pregnant again. Sometimes it's hard to tell on pygmy's whether they're pregnant or not.

   Q. Why is that?

   A. Well, they bulge out all the time, you know, so you can't usually tell until they're far advanced. So we brought her in and put her in a horse stall to watch her and she had three goats this time, and the reason the goats died is she didn't have any milk.

   So, the same thing occurred that time we had taken her to the vet right away, and the vet said she didn't have milk and she said that the three goats that she had were going to die. She said they have to have this particular mother's milk which has a certain chemical in it that the babies have to have within the first 24 hours or they'll die. She tried to prescribe some kind of a, like a formula, but it didn't work and those three died. So she suggested we, you know, not have the goat get pregnant anymore or find somebody that has those kind of goats, extract some milk from them and freeze it and keep it, or just to sell the goat, you know, and tell somebody that -- the problem with the goat.

   Q. Did you have any information about that problem with the mother in January of 1992?

   A. No.

Tr. 399-400. 

   Nonetheless, the record clearly demonstrates that the goat that Dr. Dellar described as "ill," (CX 5 at 4), was in need of care and that Respondent failed to provide that care.

   After her January 3, 1994, inspection of site two on Respondent's premises, Dr. Dellar noted on her inspection report that:

   #48 Veterinary Care (2.40) Recently a male chimp died at this facility. Records show that the animal was initially diagnosed with a respiratory problem on

   Continued from page # 2

   III #48 Vet Care (2.40) 10/28/93. By 11/2/93 the condition had worsened and antibiotics were prescribed. Twenty days later, the animal was brought back in - an died that day. The antibiotics were not correctly given by the employees and were still left. The animal was extremely yellow from jaundice, and the employees did not notice. The elephant was diagnosed with a parasite and the medication still sits in the barn 1/2 full. Animals must be observed daily and given adequate veterinary care. Correct by -01-10-94.

CX 19 at 2-3. 

   The record establishes that Respondent provided substantial veterinary care for Mr. Washington, the male chimpanzee that is the subject of Dr. Dellar's January 3, 1994, inspection report. (CX 15, 19 at 2-3; Tr. 73-78, 401-03.) Moreover, Dr. Dellar testified that the records of the veterinarian who provided veterinary services for Mr. Washington indicate that the chimpanzee did receive "a lot of care." (Tr. 200-01.) Further, Dr. Dellar's inspection report, (CX 19 at 2-3), indicates that the elephant was receiving veterinary care. While CX 19 at 2-3 indicates that Respondent may not have followed all of the veterinarian's instructions for the care of the chimpanzee and the elephant, I do not find that the Complainant has proven by a preponderance of the evidence that Respondent failed to provide veterinary care to animals in need of care, in willful violation of 9 C.F.R. § 2.40, as alleged in paragraph IX(A) of the Complaint.

    *21 Paragraphs II(C)(1), V(B)(1), VI(B)(1), and VIII(A)(5) of the Complaint allege that on September 19, 1991, [FN8] July 15, 1992, October 20, 1992, and September 14, 1993, respectively, surfaces of housing facilities for nonhuman primates were not constructed in a manner and made of materials that allow them to be readily cleaned and sanitized, or removed or replaced when worn, soiled, or rusted, in willful violation of 9 C.F.R. §§ 2.100(a), 3.75(c)(1), and 3.80(a)(ix). [FN9] Paragraph X(C)(2) of the Complaint alleges that on February 1, 1994, surfaces of housing facilities for nonhuman primates were not constructed in a manner and made of materials that allow them to be readily cleaned and sanitized, or removed or replaced when worn, soiled, or rusted, in willful violation of 9 C.F.R. §§ 2.100(a)) and 3.75(c)(1).

   Each of the APHIS inspection forms, completed by Dr. Dellar after the inspections on September 19, 1991, July 15, 1992, October 20, 1992, September 14, 1993, and February 1, 1994, identifies the surfaces of housing facilities for nonhuman primates which were not constructed in a manner and made of materials that allow them to be readily cleaned and sanitized, or removed or replaced when worn, soiled, or rusted, (CX 3 at 3 item 22, 4; CX 8 at 1 item 12, 2; CX 9 at 3 item 12, 4; CX 14 at 4 item 12, 5; CX 21 at 1 item 12, unnumbered page between page 1 and page 2).

   After her September 19, 1991, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #22 Interior surfaces (3.76) The chimp enclosure is rusting -- mostly at the feed doors. Rust is not readily sanitizable. Correction: 09-30-91.

CX 3 at 4. 

   During the July 15, 1992, inspection of site one on Respondent's premises, Dr. Dellar found that:

   III #12 Surfaces and Cleaning (3.75c1i) The new chimp enclosure is rusting and is in need of resealing. Correction date: 08-15-92.

CX 8 at 2. 

   After her October 20, 1992, inspection, Dr. Dellar listed the "surfaces and cleaning" violation found during the July 15, 1992, inspection of site one as having been corrected, (CX 9 at 2), but found that there was a similar violation at site two on Respondent's premises, as follows:

   III #12 Surfaces and Cleaning (3.75c1) The built in chimp cage is rusting and is in need of resealing. The wall behind the chimp enclosure has unsealed cement which needs to be sealed. Raw wood, concrete and rusty metal can not be readily sanitized. Correction: 11-20-92.

CX 9 at 4. 

   After her September 14, 1993, inspection of site two on Respondent's premises, Dr. Dellar recorded on her inspection report that:

   III #12 Surfaces and Cleaning (3.75c1i) The primates are scheduled to move back into winter housing (this site) today. The primate enclosures at this facility are [illegible] rusting and are in need of resealing. The wooden benches and boxes also need to be resealed. Correct by: 10-14-93.

CX 14 at 5. 

    *22 After her February 1, 1994, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #12 Surfaces and Cleaning (3.75 3) The dirt floor in the primate area was in need of cleaning and/or raking. Correct by: 02-08-94 (3.75c1) The enclosures are rusting and need to be resealed to be properly cleaned and sanitized. Correct by 03-01-94. . . .

   CX 21 at unnumbered page between page 1 and page 2.

   During her February 1, 1994, inspection, Dr. Dellar took pictures of the primate enclosures, each of which show that the enclosures were rusting, (CX 22D, E, F), and Dr. Dellar testified that, in addition to the rust on the outside of the enclosures depicted in CX 22E and CX 22F, there was rust on the inside of those enclosures. (Tr. 247-48.)

   The evidence clearly establishes that on September 19, 1991, July 15, 1992, October 20, 1992, September 14, 1993, and February 1, 1994, the surfaces of Respondent's housing facilities for nonhuman primates were not constructed in a manner and made of materials that allow them to be readily cleaned and sanitized, or removed or replaced when worn, soiled, or rusted, in willful violation of 9 C.F.R. §§ 2.100(a), 3.75(c)(1), and 3.80(a)(2)(ix), as alleged in paragraphs II(C)(1), V(B)(1), VI(B)(1), and VIII(A)(5) of the Complaint, and in willful violation of 9 C.F.R. §§ 2.100(a) and 3.75(c)(1), as alleged in paragraph X(C)(2) of the Complaint.

   Paragraphs II(C)(2) and III(D)(1) of the Complaint allege that on September 19, 1991, [FN10] and January 2, 1992, respectively, Respondent had failed to store supplies of food for nonhuman primates in a manner that protects the food from spoilage, contamination, and vermin infestation, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.75(e).

   Each of the APHIS inspection forms, completed by Dr. Dellar after the inspections on September 19, 1991, and January 2, 1992, specifies the manner in which Respondent failed to store supplies of food for nonhuman primates in a manner that protects the food from spoilage, contamination, and vermin, (CX 3 at 3 item 16, 4; CX 4 at 3 item 16, 6).

   During her September 19, 1991, inspection of site two on Respondent's premises, Dr. Dellar found that:

   #16 Storage of food (3.75 . . .) The peaches stored for the primates are rotting and need to be disposed of. . . . Correction: 09-20-91.

CX 3 at 4. 

   After her January 2, 1992, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   IV Noncompliant Standards noted on 09-19-91 that have not been corrected by 01- 02-92: #16 Storage of food (3.75 3.125) The pears stored for the animals are rotting and need to be thrown away. The oranges were beginning to rot and need to be stored in a refrigerator.

CX 4 at 6. 

   I find, based upon CX 3 and CX 4, that Complainant has proven by a preponderance of the evidence that on September 19, 1991, and January 2, 1992, Respondent failed to store supplies of food for nonhuman primates in a manner that protects the food from spoilage, contamination, and vermin, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.75(e), as alleged in paragraphs II(C)(2) and III(D)(1) of the Complaint.

    *23 Paragraph II(C)(3) of the Complaint alleges that on September 19, 1991, [FN11] Respondent failed to develop, document, and follow an appropriate plan for environmental enhancement, adequate to promote the psychological well-being of nonhuman primates, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.81.

   The APHIS inspection form, completed by Dr. Dellar after her inspection of site two on Respondent's premises on September 19, 1991, specifically states that Respondent failed to develop, document, and follow an appropriate plan for environmental enhancement, adequate to promote psychological well-being of nonhuman primates, (CX 3 at 3 item 28, 4), as follows:

   #28 General Requirements/Primate Enrichment Plan (3.81) This facility has not developed, documented, and followed an appropriate plan for environmental enhancement, adequate to promote the psychological well being of primates. Correction: 10-19-91.

CX 3 at 4. 

   While Respondent did correct this violation by the time of Dr. Dellar's January 16, 1992, inspection, (CX 5 at 4), I find that Complainant has proven by a preponderance of the evidence that on September 19, 1991, Respondent failed to develop, document, and follow an appropriate plan for environmental enhancement, adequate to promote psychological well-being of nonhuman primates, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.81, as alleged in paragraph II(C)(3) of the Complaint.

   Paragraphs II(C)(4), IV(C)(1), VII(C)(2), IX(B)(4), and X(C)(6) of the Complaint allege that on September 19, 1991, [FN12] January 16, 1992, August 10, 1993, January 3, 1994, and February 1, 1994, respectively, Respondent failed to provide facilities for animals that were structurally sound and maintained in good repair, so as to protect animals from injury, to contain animals, and to restrict the entrance of other animals, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.125(a).

   The APHIS inspection forms, completed by Dr. Dellar after her inspections on September 19, 1991, January 16, 1992, August 10, 1993, January 3, 1994, and February 1, 1994, specify the structural and maintenance deficiencies which she found on Respondent's premises, (CX 3 at 3 item 14, 4; CX 5 at 1 item 14, 2, 3 item 14, 4; CX 12 at 1 item 10, 2, 4 item 10, 5; CX 19 at 1 item 10, 2; CX 21 at 1 item 10, unnumbered page between page 1 and page 2).

   After the September 19, 1991, inspection of site two on Respondent's premises, Dr. Dellar noted the following on her inspection report:

   #14 Structural Strength (3.125) The llama pasture fence is bent, loose has bent poles and loose wire that could cause a puncture type injury. The camel pasture wire is also bent, broken and has a hole in it large enough for dogs to enter. Correction date: 09-21-91.

CX 3 at 4. 

   While Dr. Dellar testified that she saw no dogs in the camel pasture and no evidence that dogs had ever been in the pasture, (Tr. 127-28), the actual entry of animals is not a prerequisite to finding Respondent in violation of 9 C.F.R. §§ 2.100(a) and 3.125(a).

    *24 During her January 16, 1992, inspection, Dr. Dellar found structural strength violations relating to a pig enclosure located at site one on Respondent's premises. (CX 5 at 2.) However, there is some evidence in the record that the pig may not belong to Respondent, (Tr. 46-47, 144-45, 393), and the pig may not have been within the Secretary's jurisdiction under the Animal Welfare Act. Therefore, despite the evidence introduced by Complainant concerning the structural strength and maintenance of the facility housing the pig, no part of my finding that Respondent violated 9 C.F.R. § 3.125(a) on January 16, 1992, is based upon the facility housing the pig described in Dr. Dellar's January 16, 1992, inspection report. However, after her January 16, 1992, inspection of site two on Respondent's premise, Dr. Dellar noted the following structural and maintenance violations:

   III Noncompliant Standards, newly noted on 01-16-92:

   #14 Structural Strength (3.125) The deer enclosure fence is broken on the east fence line -- Broken wire which protrudes may injure an animal. The wires used to attach the gate to the fence (to patch a hole) also has protruding ends which may injure an animal. Correction date: 01-17-92.

CX 5 at 4. 

   After her August 10, 1993, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   IV #10 Structure and Construction (3.125a) A pasture fence, which now contains the deer, has been broken down and has broken wires which may injure the animal in that enclosure.

CX 12 at 2. 

   Complainant introduced a picture of the fence that is the subject of Dr. Dellar's report into evidence, (CX 13A). The back of the picture indicates that it depicts "broken fence wire in deer enclosure" and was taken by Dr. Dellar at site two on Respondent's premises at 1:30 p.m., August 10, 1993. (CX 13A.)

   After her August 10, 1993, inspection of site one on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   III #10 Structure and Construction (3.125a). This inspection was conducted in the driving rain, and it was noted that the camel/llama shelter had leaks in three different areas. Omal [sic] the camel could not stay dry in his shelter. Correct by: 09-10-93.

CX 12 at 5. 

   The record establishes that by the date of the next inspection of Respondent's premises, September 14, 1993, Respondent had repaired the roof of the camel/llama shelter, (CX 14 at 2).

   After her January 3, 1994, inspection of site two on Respondent's premises, Dr. Dellar noted the following on her inspection report:

   III #10 Structure and Construction (3.125a) The roof on the llama/sheep shelter has collapsed and is in need of repair. Correct by: 01/10/94.

 

CX 19 at 2. 

 

   After the February 1, 1994, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   IV #10 Structure and Construction (3.125a) The roof of the llama/sheep shelter has collapsed and is now only supported by one board. This is not safe should an animal break the brace.

*25  CX 21 at unnumbered page between page 1 and page 2. 

   During her February 1, 1994, inspection, Dr. Dellar took pictures of the llama/sheep shelter, which is the subject of her report, that clearly depict the structural deficiencies in the shelter. (CX 22J, K, L.)

   I find that Complainant has proven by a preponderance of the evidence that on September 19, 1991, January 16, 1992, August 10, 1993, January 3, 1994, and February 1, 1994, Respondent failed to provide facilities for animals that were structurally sound and maintained in good repair so as to protect animals from injury, to contain the animals, and to restrict the entrance of other animals, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.125(a), as alleged in paragraphs II(C)(4), IV(C)(1), VII(C)(2), IX(B)(4), and X(C)(6) of the Complaint.

   Paragraphs II(C)(5) and V(B)(3) of the Complaint allege that on September 19, 1991, [FN13] and July 15, 1992, respectively, Respondent failed to store supplies of food so as to adequately protect them against deterioration, molding, or contamination by vermin, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.125(c). Paragraphs III(D)(5), IV(C)(2), VII(C)(4), and VIII(A)(2) of the Complaint allege that on January 2, 1992, January 16, 1992, August 10, 1993, and September 14, 1993, respectively, Respondent failed to store supplies of food and bedding so as to adequately protect them against deterioration, molding, or contamination by vermin, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.125(c). Paragraph X(C)(7) of the Complaint alleges that on February 1, 1994, Respondent failed to store supplies of food and bedding so as to adequately protect them against deterioration, molding, or contamination by vermin, and refrigeration was not provided for supplies of perishable food, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.125(c).

   The APHIS inspection forms, completed by Dr. Dellar after her inspections on September 19, 1991, January 2, 1992, January 16, 1992, July 15, 1992, August 10, 1993, September 14, 1993, and February 1, 1994, identify the manner in which Respondent stored supplies of food, (CX 3 at 3 item 16, 4; CX 4 at 3 item 16, 6; CX 5 at 1 item 16, 2; CX 8 at 1 item 13, 2; CX 12 at 4 item 13, 5; CX 14 at 1 item 13, 2; CX 21 at 1 item 13, unnumbered page between page 1 and page 2).

   After her September 19, 1991, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #16 Storage of food (. . . 3.125). . . . There were several sacks of feed noted to be stored on the ground, opened, and next to bags of lime. Correction: 09- 20-91.

   CX 3 at 4.

   After her January 2, 1992, inspection of site two on Respondent's premises, Dr. Dellar recorded the following findings on her inspection report:

   IV Noncompliant Standards noted on 09-19-91 that have not been corrected by 01- 02-92: #16 Storage of food (3.75 3.125) The pears stored for the animals are rotting and need to be thrown away. The oranges were beginning to rot and need to be stored in a refrigerator.

*26  CX 4 at 6. 

   During the January 16, 1992, inspection, Dr. Dellar found that the pig food was stored in an open container. (CX 5 at 2; Tr. 46.) However, there is some evidence in the record that the pig may not belong to Respondent, (Tr. 46-47, 144-45, 393), and the pig may not have been within the Secretary's jurisdiction under the Animal Welfare Act. Therefore, despite the evidence introduced by Complainant concerning storage of pig food, I find that the record is not quite strong enough to reverse the ALJ with respect to the violation alleged in paragraph IV(C)(2) of the Complaint. Moreover, despite evidence of the violations alleged in paragraphs IV(C)(3), IV(C)(4), and IV(C)(5) of the Complaint, all of which relate solely to the pig referenced in Dr. Dellar's January 16, 1992, inspection report, (CX 5), I find that the evidence is not quite strong enough to reverse the ALJ with respect to the violations alleged in paragraphs IV(C)(3), IV (C)(4), and IV(C)(5) of the Complaint.

   After her July 15, 1992, inspection of site one on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #13 Storage (3.125c) The petting area storage barn was found to have cleaning type chemicals stored with the feed, which may contaminate the feed. Also an open feed bag was found -which needs to be placed in a container with a tight lid. Correction date: 07-16-92.

CX 8 at 2. 

   After her August 10, 1993, inspection of site one on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #13 Food storage (3.125c) The door to the storage barn had been left open causing some of the feed to become wet from the rain. Bags of feed were also found open, stored on the floor and insecticides were being stored directly above the feed bags. Correct by 08-10-93 close of business.

CX 12 at 5. 

   Dr. Dellar took a picture of the manner in which the feed was stored next to the door of the storage barn. (CX 13E.) The back of CX 13E indicates that it depicts "open bags of feed, wet from rain in feed storage area" and that it was taken by Dr. Dellar at 10:45 a.m., during her August 10, 1993, inspection of site one on Respondent's premises. (CX 13E)

   After her September 14, 1993, inspection of site one on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   IV #13 Food storage (3.125c) Spilled feed was on the floor in the storage area. Open bags were stored on the floor and many of the feed containers do not have lids.

CX 14 at 2. 

   After the February 1, 1994, inspection of site two on Respondent's premises, Dr. Dellar noted the following:

   #13 Storage (3.125c) . . . . Food that needed to be refrigerated was being kept on a shelf . . . perishable foods shall be stored in the refrigerator. Correct by 02-01-94 close of business.

CX 21 at unnumbered page between page 1 and page 2. 

   During the February 1, 1994, inspection, Dr. Dellar took a picture of the food that she found needed to be refrigerated and, instead, was kept on a shelf. (CX 22H (upper left-hand corner).) The back of CX 22H indicates that it depicts "food prep area -spilled trash on floor -- produced [sic] stored outside of refrigerator" and that the picture was taken by Dr. Dellar at 11:30 a.m., during her February 1, 1994, inspection of site two on Respondent's premises.

    *27 I find that Complainant has proven by a preponderance of the evidence that on September 19, 1991, January 2, 1992, July 15, 1992, August 10, 1993, September 14, 1993, and February 1, 1994, Respondent stored supplies of food, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.125(c), as alleged in paragraphs II(C)(5), III(D)(5), V(B)(3), VII(C)(4), VIII(A)(2), and X(C)(7) of the Complaint.

   Paragraphs II(C)(6) and VIII(A)(7) of the Complaint allege that on September 19, 1991, [FN14] and September 14, 1993, respectively, Respondent failed to keep water receptacles clean and sanitary, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.130.

   The APHIS inspection forms, completed by Dr. Dellar after the inspections on September 19, 1991, and September 14, 1993, identify the water receptacles that were not kept clean and sanitary, (CX 3 at 3 item 33, 4; CX 14 at 4 item 35, 5).

   After her September 19, 1991, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #33 Watering (3.130) The goat and llama water receptacles were green with algae and had debris in them -indicating that they are not cleaned and sanitized often enough. Correction: 09-21-91.

CX 3 at 4. 

   After her September 14, 1993, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #35 Watering (3.130) The llama/deer water receptacle was green and cloudy and contained hay -- indicating that it had not been cleaned often enough. Correct by: 09-16-93.

CX 14 at 5. 

   I find that Complainant has proven by a preponderance of the evidence that on September 19, 1991, and September 14, 1993, Respondent failed to keep water receptacles clean and sanitary, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.130, as alleged in paragraphs II(C)(6) and VIII(A)(7) of the Complaint.

   Paragraph II(C)(7) of the Complaint alleges that on September 19, 1991, [FN15] Respondent failed to keep primary enclosures clean, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.131(a). The APHIS inspection form, completed by Dr. Dellar after her inspection on September 19, 1991, identifies the primary enclosures that were not kept clean, (CX 3 at 3 item 35, 4).

   During the September 19, 1991, inspection of site two on Respondent's premises, Dr. Dellar found that:

   #35 Cleaning (3.131) The sheep and goat pasture had a build up of feces -- also the shelter was in need of cleaning. Correction 09-21-91.

CX 3 at 4. 

   Despite the evidence that Respondent violated 9 C.F.R. §§ 2.100(a) and 3.131(a) on September 19, 1991, in light of Dr. Dellar's testimony on cross-examination regarding the quantity of feces that she found, (Tr. 131-33), I do not find the record strong enough to reverse the ALJ with respect to the allegations in paragraph II(C)(7) of the Complaint.

   Paragraphs II(C)(8) and III(D)(7) of the Complaint allege that on September 19, 1991, [FN16] and January 2, 1992, respectively, and paragraphs VII(C)(1) and VII(C)(6) of the Complaint allege that on August 10, 1993, Respondent failed to keep the premises (buildings and grounds) clean and in good repair and free of accumulations of trash, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.131(c). Paragraph X(C)(11) of the Complaint alleges that on February 1, 1994, Respondent failed to keep the premises (buildings and grounds) clean and in good repair, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.131(c). The APHIS inspection forms, completed by Dr. Dellar after her inspections on September 19, 1991, January 2, 1992, August 10, 1993, and February 1, 1994, identify portions of Respondent's premises that were not kept clean and repaired, (CX 3 at 3 item 36, 4; CX 4 at 3 item 36, 4; CX 12 at 1 item 37, 2; CX 21 at 1 item 37, unnumbered page between page 1 and page 2).

    *28 After her September 19, 1991, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #36 Housekeeping (3.81 3.131) The goat pasture had boards, wire and an old gate which need to be removed. The camel pasture has wood, paper, plastic, blocks and sheet metal which needs to be removed. The barn had old rugs, paper, wood and other junk around it and the pastures.

CX 3 at 4. 

   After her January 2, 1992, inspection of site two on Respondent's premises, Dr. Dellar recorded the following findings on her inspection report:

   #36 Housekeeping (3.8 3.131) The food prep area was stacked with empty cereal boxes, overflowing trash receptacle was beneath the sink. The refrigerator needed cleaning and outdated food items need disposing of. Correction date: 01- 02-92 close of business.

CX 4 at 4. 

   During her August 10, 1993, inspection of site two on Respondent's premises, Dr. Dellar found that:

   #37 Housekeeping (3.131c) The deer, llama and horse enclosures contained numerous bale ropes, boards, chewed hose, paper and other debris which may cause injury if ingested. Trash needs to be removed on a regular basis.

CX 12 at 2. 

   Dr. Dellar took two pictures of the debris that she observed in animal enclosures during her August 10, 1993, inspection. (CX 13B, 13D.) The back of CX 13B indicates that the picture depicts Respondent's "animal caretaker removing debris from deer enclosure during [the August 10, 1993,] inspection" of site two on Respondent's premises. The back of CX 13D indicates that the picture depicts "bale rope, chewed hose, rope, ect [sic] removed from animal enclosure," during the August 10, 1993, inspection of site two on Respondent's premises.

   The Complaint alleges that on August 10, 1993, Respondent violated 9 C.F.R §§ 2.100(a) and 3.131(c) by failing to keep the premises clean and in good repair and free of accumulations of trash on two occasions. (Complaint ¶¶ VII(C)(1) and VII(C)(6).) While Complainant has proven by much more than a preponderance of the evidence that Respondent violated 9 C.F.R. §§ 2.100(a) and 3.131(c), at site two on Respondent's premises, on August 10, 1993, there is no evidence that Respondent violated 9 C.F.R. §§ 2.100(a) and 3.131(c) at site one, on August 10, 1993. Therefore, under the circumstances in this case, I am reversing the ALJ only with respect to one of the violations of 9 C.F.R. §§ 2.100(a) and 3.131(c) alleged in paragraph VII(C) of the Complaint.

   After her February 1, 1994, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #37 Housekeeping (3.131c) The sheep/llama hay feeder is broken and in need of repair to protect the animals from injury. Correct by 02-08-94.

CX 21 at unnumbered page between page 1 and page 2. 

   I find that Complainant has proven by a preponderance of the evidence that on September 19, 1991, January 2, 1992, and August 10, 1993, Respondent failed to keep the premises (buildings and grounds) clean and in good repair and free of accumulations of trash, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.131(c), as alleged in paragraphs II(C)(8), III(D)(7), and VII(C)(1) of the Complaint, and that on February 1, 1994, Respondent failed to keep the premises (buildings and grounds) clean and in good repair, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.131(c), as alleged in paragraph X(C)(11) of the Complaint.

    *29 Paragraph II(C)(9) of the Complaint alleges that on September 19, 1991, [FN17] the primary enclosure used to transport live animals lacked sufficient structural strength to contain live animals and to withstand the normal rigors of transportation, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.137. The APHIS inspection form, completed by Dr. Dellar after the inspection on September 19, 1991, identifies the particular primary enclosure that lacks structural strength sufficient to contain animals and to withstand the normal rigors of transportation, (CX 3 at 1 item 43, 2).

   After her September 19, 1991, inspection of site one on Respondent's premises, Dr. Dellar recorded the following on her report:

   III Noncompliant Standards noted (newly) on 09-19-91:

   #43 Transport Enclosures (3.137) The horse trailer has a hole in the right side which is large enough for a foot to slip into. The hole is on the side of the wall at the bottom. The exposed metal edges are a possible injury site. Correction: 09-30-91.

CX 3 at 2. 

   Dr. Dellar testified that, during her September 19, 1991, inspection of Respondent's premises, Respondent's animal caretaker told her that the trailer was used to transport Respondent's animals. (Tr. 118-20.) However, it is unclear from Mr. King's testimony whether Respondent uses the trailer that is the subject of Dr. Dellar's September 19, 1991, inspection report to transport animals. (Tr. 351-52.) Further, Mr. Stramaglia testified that the trailer that is the subject of Dr. Dellar's September 19, 1991, inspection report does not belong to Respondent, and the trailer is generally used to transport hay only. (Tr. 414.) While Mr. Stramaglia testified that the trailer has been used "to transport horses in the past," (Tr. 414), and Respondent's use of the trailer to transport animals would be sufficient to find Respondent in violation of 9 C.F.R. §§ 2.100(a) and 3.137, it is unclear when Respondent used the trailer to transport animals and whether the hole that Dr. Dellar found, existed at the time Respondent used the trailer to transport animals. Therefore, I do not find the record strong enough to reverse the ALJ with respect to the violation alleged in paragraph II(C)(9) of the Complaint. Similarly, I do not find that the record clearly identifies the trailer that is the subject of the allegation in paragraph V(B)(6) of the Complaint as a trailer used by Respondent to transport animals.

   Paragraphs III(C) and X(A) of the Complaint allege that on January 2, 1992, and February 1, 1994, respectively, Respondent refused to allow APHIS to inspect its animals, facilities, and records, in willful violation of 7 U.S.C. § 2146 and 9 C.F.R. § 2.126. The APHIS inspection forms, completed by Dr. Dellar after her January 2, 1992, and February 1, 1994, inspections, describe Respondent's refusals to allow her to conduct her inspections, (CX 4 at 2; CX 21 at 1 item 51, unnumbered page between page 1 and page 2).

   After her January 2, 1992, inspection of Respondent's premises, Dr. Dellar recorded Respondent's refusal to allow her to make a complete inspection of the premises, as follows:

    *30 2.126 Access and Inspection: After zoo manager Ben Merzer began using profanities -- I was asked to leave and return to conduct my inspection another day. Each exhibitor shall during business hours allow APHIS officials to enter its place of business and to inspect and photograph the facilities, property and animals -- to enforce the provisions of the Act. Correction date: 01-02-92 Close of business.

CX 4 at 2. 

   Dr. Dellar's inspection report reveals that she arrived at Respondent's premises to conduct her January 2, 1992, inspection at 11:00 a.m. (CX 4 at 1 item 5.) Dr. Dellar testified that she specifically recalled being unable to complete the January 2, 1992, inspection because Respondent's employee asked her to leave, as follows:

   [BY MS. DESKINS:]

   Q. And let's just clarify this. Now, it was your normal procedure to fill this document out at the end of your inspection?

   [BY DR. DELLAR:]

   A. Normally, yes.

   Q. And did you think you followed that procedure for this particular inspection?

   A. This form was filled out after I was asked to leave.

   Q. And you specifically recall that?

   A. Yes. And I was not able to complete my inspection so that's not the normal inspection procedure, but that's what happened.

   Q. Were you able to discuss what you had found with the zoo manager?

   A. No.

   Q. And is that the reason that there is no signature by someone who received a copy of the inspection report?

   A. Correct.

Tr. 39-40. 

   Mr. Stramaglia testified that he terminated Ben Merzer's employment by Respondent after Ben Merzer denied Dr. Dellar access to the facility, as follows:

   [BY MS. ALDEN:]

   Q. One of the inspection reports contains a complaint that one of your employees, Ben, used profanity to the inspector on at least one occasion and did not permit the inspector access to the facility. What action did you take with respect to Ben regarding that conduct?

   [BY MR. STRAMAGLIA:]

   A. Well, I believe my sister Nancy conducted inspections with Lisa for a period of time after that.

   Q. Was Ben's employment with the park terminated after that?

   A. Not long after that, yes.

Tr. 395. 

   Moreover, Dr. Dellar testified that she believes she was not accompanied on inspections of Respondent's premises by Ben Merzer after the January 2, 1992, inspection.

   [BY MS. ALDEN:]

   Q. You testified that the only thing you remember about the visit on January 2nd, 1992 was the fact that you were greeted by an employee named Ben who was profane to you?

   [BY DR. DELLAR:]

   A. Correct, that's what I testified too.

   Q. Is it true that Ben was taken off the responsibility of guiding you through inspections[] after that?

   A. I don't know.

   Q. You don't know?

   A. I don't know.

   Q. Well, isn't it true that Ms. Nancy Stramaglia accompanied you during your inspecitons, [sic] or someone else, from that inspection forward?

   A. I don't have specific recall of that, but I don't know if he was taken off, maybe [sic] he was busy, maybe he was at lunch. I don't know why.

    *31 Q. Well, let me ask it a different way then. Isn't it true that from the next inspection forward you were accompanied by someone other than Ben on your inspections?

   A. I don't have specific recollections of that, I think that's right. But I don't recall specifically.

Tr. 137-38. 

   After the February 1, 1994, inspection of Respondent's premises, Dr. Dellar recorded Respondent's refusal to allow her to inspect records, as follows:

   #51 Others (2.126a2) Access to the records was not allowed by the employees of this facility because of the owners absence. Correct by: 02-01-94 close of business.

CX 21 at unnumbered page between page 1 and page 2. 

   Dr. Dellar testified that she specifically recalled being unable to inspect Respondent's records during the February 1, 1994, inspection, as follows:

   BY MS. DESKINS:

   Q. Okay. Can you please tell us what your memories are for that particular inspection. And by "that inspection", I'm referring to the inspection of February 1 of 1994.

   [BY DR. DELLAR:]

   A. I had two things that I remember distinctly about this.

   . . . .

   BY MS. DESKINS:

   Q. You can continue, Dr. Dellar.

   [BY DR. DELLAR:]

   A. . . . And then the second thing I remember distinctly is the employees at the office didn't have access to the records and when I asked to do the record inspection, they couldn't obtain the files because they didn't have either keys to the office or they didn't have permission to go in and get the files. And that I was not allowed to do a record inspection and that the main secretary or receptionist or whoever that person was, wouldn't sign the inspection report either. He said he didn't have authorization to sign for any type of inspection document, so I had to leave with this inspection report not signed.

Tr. 88-89. 

 

   Mr. Stramaglia testified that Dr. Dellar was denied access to Respondent's records, but that he has taken steps to correct the problem, as follows:

   [BY MS. ALDEN:]

   Q. We've heard a complaint that -- on at lease [sic] one and perhaps two occasions, access to the records was unavailable.

   [BY MR. STRAMAGLIA:]

   A. Yes. That was last winter.

   Q. All right. What steps have you taken to correct that?

   A. What I did is I took the file that I have locked up and I've given the key to my accountant so that he can get into my office, and he knows exactly where that file is and he can get it out and bring it out.

   Q. All right. Have you assigned the duties of upkeeping the records to anyone in your facility?

   A. No, I haven't. I've been trying to maintain that myself.

Tr. 390-91. 

   Despite Respondent's efforts to ensure that APHIS has access to Respondent's facility to conduct inspections in accordance with the Animal Welfare Act, it is undisputed that, on January 2, 1992, and February 1, 1994, Dr. Dellar was refused access to Respondent's facility, in willful violation of 7 U.S.C. § 2146 and 9 C.F.R. § 2.126, as alleged in paragraphs III(C) and X(A) of the Complaint, and I agree with the ALJ's conclusion that Respondent violated 7 U.S.C. § 2146 and 9 C.F.R. § 2.126 on January 2, 1992, and February 1, 1994, (Initial Decision and Order at 27).

    *32 Paragraph III(D)(2) of the Complaint alleges that on January 2, 1992, Respondent failed to equip housing facilities for nonhuman primates with disposal facilities and drainage systems constructed and operated so that animal wastes and water are rapidly eliminated and the animals stay dry, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.75(f). The APHIS inspection form, completed by Dr. Dellar after the inspection on January 2, 1992, identifies the housing facilities that were not equipped with drainage systems and operated so that water is rapidly eliminated, (CX 4 at 3 item 23, 4).

   After her January 2, 1992, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #23 Drainage (3.76 3.126) The entire facility was flooded due to a hose break. The elephant was standing in 3-5" of water. The primate (chimp) enclosure was flooded on 1 side and the zebra and camel stalls were wet. Correction date: 01- 02-92 close of business.

CX 4 at 4. 

   Dr. Dellar testified that she remembered that she was informed that the cause of the water problem was a broken water pipe. (Tr. 35, 138, 270-71.) Despite the reason for the water in the housing facility for nonhuman primates, it is clear that there was a substantial amount of water in a primate enclosure on January 2, 1992, and that it was not rapidly eliminated by a drainage system. Therefore, I find that Respondent violated 9 C.F.R. §§ 2.100(a) and 3.75(f), as alleged in paragraph III(D)(2) of the Complaint. Respondent is also alleged, in paragraph III(D)(6) of the Complaint, to have failed to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals on January 2, 1992, in violation of 9 C.F.R. §§ 2.100(a) and 3.127(c). The evidence does not clearly establish which, if any, of the housing facilities that Dr. Dellar identified in her January 2, 1992, inspection report as flooded, were outdoor facilities. Therefore, I cannot find on this record that Respondent violated 9 C.F.R. §§ 2.100(a) and 3.127(c), as alleged in paragraph III(D)(6) of the Complaint.

   Paragraph III(D)(3) of the Complaint alleges that on January 2, 1992, Respondent failed to provide nonhuman primates with food that was wholesome and free from contamination, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.82(d). The APHIS inspection form, completed by Dr. Dellar after her January 2, 1992, inspection of site two on Respondent's premises, identifies the placement of a bowl under the metal mesh of the primate enclosure in a manner that did not protect the food from contamination by the primates' feces and urine. (CX 4 at 4.) However, Dr. Dellar's inspection report does not indicate that Respondent failed to provide nonhuman primates with food that was wholesome and free from contamination or that any food in the bowl identified in her report was unwholesome or contaminated. While the record indicates that the location of the bowl may have been in violation of 9 C.F.R. §§ 2.100(a) and 3.82(d), paragraph III(D)(3) of the Complaint does not allege that Respondent violated the standards by failing to locate the food receptacle so as to minimize risk of contamination, and I find no basis for reversing the ALJ's dismissal of paragraph III(D)(3) of the Complaint.

    *33 Paragraph III(D)(4) of the Complaint alleges that, on January 2, 1992, Respondent failed to keep the premises, including buildings and surrounding grounds, clean and in good repair in order to protect nonhuman primates from injury, to facilitate the required husbandry practices, and to reduce or eliminate breeding and living areas for rodents, pests, and vermin. More specifically, paragraph III(D)(4) of the Complaint alleges that the premises were not kept free of accumulations of trash, junk, waste, and discarded matter, including food items, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.84(c). Paragraph VIII(A)(6) of the Complaint alleges that on September 14, 1993, Respondent failed to keep the premises clean and free of accumulations of trash and debris, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.84(c). The APHIS inspection forms, completed by Dr. Dellar after her January 2, 1992, and September 14, 1993, inspections, identify the manner in which Respondent failed to keep the premises clean and in good repair, (CX 4 at 3 item 36, 4; CX 14 at 4 item 37, 5).

   After her January 2, 1992, inspection of site two on Respondent's premises, Dr. Dellar recorded her findings as follows:

   #36 Housekeeping (3.8 3.131) The food prep area was stacked with empty cereal boxes, overflowing trash receptacle was beneath the sink. The refrigerator needed cleaning and outdated food items need disposing of. Correction date: 01- 02-92 close of business.

CX 4 at 4. 

   After her September 14, 1993, inspection of site two on Respondent's premises, Dr. Dellar recorded the following:

   #37 Housekeeping (3.84c) The (celebes) primate area had [illegible] materials that need to be removed before the animals are brought to this site. Also the enclosures need to have cobwebs, dead insects, ect [sic] removed -- as well as the food prep room. Correct by: 10-14-93 (before animals are moved).

CX 14 at 5. 

   Based upon CX 4 and CX 14, I find that Complainant has proven by a preponderance of the evidence that Respondent violated 9 C.F.R. §§ 2.100(a) and 3.84(c) on January 2, 1992, and September 14, 1993, as alleged in paragraphs III(D)(4) and VIII(A)(6) of the Complaint.

   Paragraph IV(C)(6) of the Complaint alleges that on January 16, 1992, Respondent failed to utilize a sufficient number of employees to maintain the prescribed level of husbandry practices, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.132. The APHIS inspection form, completed by Dr. Dellar after her January 16, 1992, inspection of site two on Respondent's premises, identifies Dr. Dellar's concern with respect to the ability of one of Respondent's employees to care for animals, (CX 5 at 3 item 38, 4). However, Dr. Dellar's inspection report does not address the sufficiency of the number of employees, as alleged in paragraph IV(C)(6) of the Complaint, and I agree with the ALJ's dismissal of paragraph IV(C)(6) of the Complaint.

   Paragraph V(B)(2) of the Complaint alleges that on July 15, 1992, Respondent failed to provide outdoor housing which protect nonhuman primates from temperatures falling below 45 £F., in willful violation of 9 C.F.R. §§ 2.100(a) and 3.78(b). The APHIS inspection form, completed by Dr. Dellar after her July 15, 1992, inspection of site one on Respondent's premises, identifies Respondent's failure to provide outdoor housing facilities for nonhuman primates which protect the primates from temperatures below 45 £>>F., (CX 8 at 1 item 23, 2).

    *34 After Dr. Dellar's July 15, 1992, inspection of site one on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   23 Shelter (3.78b) The primate shelters do not provide heat (they cannot provide heat) should the temperature fall below 45 £F. The primates are not easily moved to warmer quarters if the temp should fall below 45 £F. either. Correction date 08- [illegible].

CX 8 at 2. 

   The record indicates that Respondent corrected this violation by the time of the next inspection, October 20, 1992, by moving the primates out of the facility that did not have any heat, (CX 9 at 2). Nonetheless, the evidence is clear that on July 15, 1992, Respondent violated 9 C.F.R. §§ 2.100(a) and 3.78(b), as alleged in paragraph V(B)(2) of the Complaint.

   Paragraphs V(B)(4) and VIII(A)(1) of the Complaint allege that on July 15, 1992, and September 14, 1993, respectively, Respondent failed to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.127(c). The APHIS inspection forms, completed by Dr. Dellar after her July 15, 1992, and September 14, 1993, inspections of Respondent's premises, identify the outdoor facilities which did not have a suitable method to rapidly eliminate excess water, (CX 8 at 1 item 24, 2, 3 item 24, 4; CX 14 at 1 item 14, 2).

   After her July 15, 1992, inspection of site one on Respondent's premises, Dr. Dellar recorded the following findings in her inspection report:

   #24 Drainage (3.127) -- Shelter for the llamas and the zebra had standing water in them. Correction date: 07-17-92.

CX 8 at 2. 

   Similarly, at site two on Respondent's premises, Dr. Dellar found that:

   #24 Drainage (3.127) The deer shelter floor was extremely wet and muddy from the holes in the roof and from the slope of the floor -- It allowed water from the pasture to flow into the shelter. Correction date: 07-22-92.

CX 8 at 4. 

   By the time Respondent's premises was next inspected, October 20, 1992, Respondent had corrected the drainage problems described in Dr. Dellar's July 15, 1992, inspection report. (CX 9 at 2, 4.)

   After her September 14, 1993, inspection of site one on Respondent's premises, Dr. Dellar recorded the following:

   III #14 Drainage (3.125) Due to the rain, the zebra shelter was very muddy and actually is lower than the surrounding ground causing water to enter. The zebra could not stay dry in that shelter. Correct by 09-21-93.

CX 14 at 2. 

   Respondent did not offer any evidence to rebut Dr. Dellar's July 15, 1992, and September 14, 1993, findings regarding the drainage problems at the shelters, which are the subject of Dr. Dellar's inspection reports. (CX 8, 14.)

   Paragraphs V(B)(5), VI(B)(2), VII(C)(5), VIII(A)(4), and X(C)(10) of the Complaint allege that on July 15, 1992, October 20, 1992, August 10, 1993, September 14, 1993, and February 1, 1994, respectively, Respondent failed to provide animals with wholesome and uncontaminated food, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.129(a). The APHIS inspection forms, completed by Dr. Dellar after her July 15, 1992, October 20, 1992, August 10, 1993, September 14, 1993, and February 1, 1994, inspections of Respondent's premises, identify circumstances in which Respondent failed to provide animals with wholesome and uncontaminated food, (CX 8 at 1 item 34, 2; CX 9 at 3 item 34, 4; CX 12 at 4 item 34, 5; CX 14 at 1 item 34, 2; CX 21 at 1 item 34, unnumbered page between page 1 and page 2).

    *35 After her July 15, 1992, inspection of site one on Respondent's premises, Dr. Dellar recorded the following:

   #34 Feeding (3.129b) The sheep, goats, and cow were noted to be laying in, and contam [illegible] feed. Measures need to be taken to prevent feed contamination by excreta. Correction date: 07-17-92.

CX 8 at 2. 

   On the next inspection of Respondent's premises, October 20, 1992, Dr. Dellar found that Respondent had corrected the feeding problem identified in her July 15, 1992, inspection report, (CX 9 at 2), but found a similar problem at site two on Respondent's premises, as follows:

   #34 Feeding (3.129a) The elephant was being fed moldy bread buns. Mold is not wholesome and should not be fed to animals. Correction date: 10-20-92 close of business.

CX 9 at 4. 

   After her August 10, 1993, inspection of site one of Respondent's premises, Dr. Dellar found that:

   #34 Feeding (3.129b) Some of the animals were provided feed bags, but most were not. Animals were found laying in, defecating and urinating on their hay. The deer hay was rained on and placed on the ground (mud). Correct by 08-12-93.

CX 12 at 5. 

   During the next inspection of site one on Respondent's premises, September 14, 1993, Dr. Dellar found a similar violation of 9 C.F.R. §§ 2.100(a) and 3.129(a), as follows:

   #34 Feeding (3.129b) Some feed receptacles were available but none were use at this inspection. Animals were found to be standing in and contaminating their feed with urine and/or feces.

CX 14 at 2. 

   Finally, after her February 1, 1994, inspection of site two on Respondent's premises, Dr. Dellar recorded the following findings concerning feed:

   #34 Feeding (3.82a 3.129a) The rotten produce from the last inspection was fed to the elephant. Other old and deteriorating vegetables were still being stored and fed to the animals.

CX 21 at unnumbered page between page 1 and page 2. 

   Mr. Stramaglia testified that the hay that Dr. Dellar found to be contaminated may have been bedding rather than feed. (Tr. 395-96.) Therefore, I find that the record is not quite strong enough to warrant reversing the ALJ with respect to the violations alleged in paragraphs V(B)(5), VII(C)(5), and VIII(A)(4) of the Complaint, and I have reversed the ALJ only with respect to Respondent's failure to provide animals with wholesome and uncontaminated food, as alleged in paragraphs VI(B)(2) and X(C)(10), which clearly relate to food other than hay.

   Paragraphs VII(C)(3), IX(B)(6), and X(C)(9) of the Complaint allege that on August 10, 1993, January 3, 1994, and February 1, 1994, respectively, Respondent failed to provide animals kept outdoors with adequate shelter from inclement weather, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.127(b). The APHIS inspection forms, completed by Dr. Dellar after her August 10, 1993, January 3, 1994, and February 1, 1994, inspections, identify Respondent's failure to provide animals kept outdoors with adequate shelter, (CX 12 at 4 item 23, 5; CX 19 at 1 item 23, 2; CX 21 at 1 item 23, unnumbered page between page 1 and page 2).

    *36 After her August 10, 1993, inspection of site one on Respondent's premises, Dr. Dellar recorded the following:

   #23 Shelter from elements (3.127b) One llama was housed with the camel but the shelter was only large enough for the camel -- shelter space must be adequate for all animals to be afforded shelter. Correct by: 08-10-93 close of business.

CX 12 at 5. 

   Although the Complaint does not allege any violation by Respondent of the shelter requirements in 9 C.F.R. §§ 2.100(a) and 3.127(b) on September 14, 1993, Dr. Dellar's September 14, 1993, inspection report reveals that the llama and camel were still housed together on September 14, 1993, and had a single shelter that was too small for both animals. (CX 14 at 2.)

   After her January 3, 1994, inspection of site two on Respondent's premises, Dr. Dellar recorded the following:

   #23 Shelter (3.127b) In the past, the camel was kept in the large heated barn during the winter. This winter, he is being kept outside with access to a shelter. This shelter has no bedding, and the camel was reluctant to leave it. In an interview with the keeper, I was told that the camel only left the shelter for food and water. The attending vet recommends that the camel be housed in the large barn as well - or that the animal be heavily bedded down. Correct by: 01-10-94.

CX 19 at 2. 

   Dr. Dellar testified that she recalled a conversation with one of Respondent's employees regarding shelter for the camel, as follows:

   [BY MS. DESKINS:]

   Q. Okay. Do you happen to remember what you observed outdoors?

   [BY DR. DELLAR:]

   A. Outdoors, because it was so cold, I remember going out to the enclosure and finding Omar the camel outdoors. And also being concerned that it was such a cold winter where we were having abnormally low temperatures and exceedingly low wind chill factors, that the camel was being housed outdoors. And I was concerned about that, and I brought that up with Mel as well. But his response was that this is the way it's been since I've gotten here, and I'm not going to make any changes. And then he let it rest.

Tr. 68-69. 

   Dr. Dellar further testified regarding the basis for finding that the camel was not provided with adequate shelter, as follows:

   BY MS. ALDEN:

   Q. On the third of January 1994 was also the time that you observed the camel outside; isn't that right?

   [BY DR. DELLAR:]

   A. Yes.

   Q. Didn't you also observe the shelter that was outside for the camel?

   A. Yes.

   Q. And am I to take it then that you didn't consider the shelter to be adequate for the camel?

   A. The shelter was cited on line 37 for having loose plywood, loose boards and protruding nails. So it was inadequately protecting him from injury. And under shelter, it was inadequately bedded down, I cited that as well.

   Q. So, was it your view that the camel should be brought into the barn or that simply the elimination of the shelter and those conditions that you found to be unacceptable would be sufficient?

    *37 A. I discussed two different possibilities. I strongly suggested that they follow their attending veterinarian's recommendation of bringing the animal inside and giving the animal access to the outdoors on a daily basis. If they couldn't do that, I then suggested that they bed the shelter down heavily and remove the nails and the loose boards to make it safe for him to be in there.

   Q. Have you ever treated a camel?

   A. No.

   Q. Have you ever studied camels?

   A. No.

   Q. Do you know anything about a camel's requirements in extreme hot or cold?

   A. Specific camel information?

   Q. Specific camel information.

   A. No.

   Q. Well, are you telling the Court that you cited the facility for this violation because the attending vet suggested that the camel should be put inside?

   A. No. What I do is, I look at an individual animal and I can determine by their behavior whether it's normal or not. I've seen this camel on several occasions, and I inspect several camels, so I am familiar with normal behavior. This animal is in his enclosure and had made tracks in the snow only to the food and water areas, and then back to the shelter.

   When I asked him to leave the shelter so that I could look at it for nails and things like that, it was very reluctant and wouldn't leave, whereas that camel normally will be led and is normally a very cooperative animal.

   Q. Normally on your inspections in the facility?

   A. Correct. Correct. So based on the information that I had that he had never been outside in the winter before, because I hadn't seen him outside before, he was very reluctant to leave because it was so cold. And that the shelter wasn't appropriate for him with the nails and the loose boards and the inadequate bedding. That's how I based my recommendation.

   Q. Well, you testified earlier about all the treatises that you studied with respect to elephants and all of the experts that you've consulted with respect to elephant socialization and behavior. Have you ever done anything like that with respect to camels?

   A. No.

   Q. Is it fair to say that you're not familiar with treatises with respect to camels, or are you?

   A. Can you define treatises?

   Q. Well, let me ask you specifically about Walker's Mammals of the World. Are you familiar with that?

   A. I think that was part of the exhibits, and I think I read over the part that was submitted.

   Q. Well, is it your testimony that you are not familiar with the publication Walker's Mammals of the World?

   A. I did read over the part that was submitted as part of the case. So that particular section I did read.

   Q. All right. That's not my question. Are you telling the Court that you are not familiar with the publication generally, Walker's Mammals of the World?

   A. Generally, I am not familiar with that. Correct.

   Q. Had you heard about it before you saw it as an exhibit in this case?

   A. No.

   Q. What information or treatises have you consulted with respect to the care of camels?

    *38 A. None.

   Q. Well, do you not -- is it not your common understanding that camels live -- can live in extreme heat and extreme cold, and do in their natural habitat?

   A. Generally, I understand that. But again, I look at individuals. And this individual may be compromised, he may be old. He may have other underlying medical conditions which would not allow him to withstand the extremes as well as a normal species average.

   Q. But you don't know that?

   A. No, I do not know that.

   Q. Okay. No inspection that you've ever made of the camel has indicated to you that the camel was compromised in any way?

   A. Correct.

   Q. And the attending vet has not indicated to you that the camel has any medical condition or is compromised in any way?

   A. Correct.

   Q. You've been inspecting this facility since 1989?

   A. Eighty-eight.

   Q. Since 1988. And how long has the camel been there?

   A. A long time, I don't know the exact years.

   Q. So the first time in January of 1994 you determined that the camel needs to be brought inside; is that correct?

   A. It's the first time he was housed outdoors during the winter.

   Q. To the best of your knowledge?

   A. To the best of my knowledge, correct.

   Q. Is it your testimony today that you've never seen the camel outside in the winter before?

   A. I've seen him on a turnout basis where if it's a nice sunny day, the camel would be turned out, but then brought in at night when the temperatures got too cold.

   Q. How do you know that?

   A. I was told.

   Q. No, you -- didn't you just say you've seen that?

   A. Yeah, I saw him outside. On previous inspections he's been outside. But when I've inquired about it, I was told that he was brought in at night and --

   Q. So you don't really know whether he's been in or out in previous years; do you?

   A. Correct. I'm only going by what I was told.

   Q. All right. What you were told by whom?

   A. The attending veterinary and the animal caretakers.

   Q. And that's the basis for your violation for the first time with respect to the camel in January of 1994?

   A. My basis is that this particular animal didn't appear to be able to cope with the cold weather and needed to have something done.

   Q. And did you make a suggestion as to what should be done?

   A. Bring him indoors and allow him access outside on good days or make his shelter safe and bed him down heavier.

Tr. 180-86. 

   During her February 1, 1994, inspection of site two on Respondent's premises, Dr. Dellar again found that the camel did not have sufficient bedding for the winter weather. (CX 21 at unnumbered page between page 1 and page 2.) Again, Dr. Dellar testified that she remembered a conversation with one of Respondent's employees regarding shelter for the camel, as follows:

   [BY MS. DESKINS:]

   Q. Okay. Do you have any memories regarding a camel?

   [BY DR. DELLAR:]

   A. Specific memories, I remember that Omar the camel was still outside and had not been brought in.

    *39 Q. And is there anything else that you remember about this inspection?

   A. Oh, I remember also that in my discussions with the animal caretaker, he felt that not only did he not need to bring in the camel, that he didn't need to bed the facility -- bed the enclosure down any more, that the camel had sufficient bedding and that he just didn't feel that what I was asking was reasonable at all. I --

   Q. Okay. Go ahead.

   A. I was asking for either heavier bedding so that the animal could get some warmth from additional bedding or be brought into the facility, and on both things he thought both of those requests were unreasonable. So I remember that.

   Q. Do you recall anything about the weather at this time?

   A. Not specifically. It was winter and it was cold, but I don't remember specifics.

Tr. 89-90. 

   Mr. King testified that Respondent's camel was a dromedary and that the camel could be exposed to weather extremes. (Tr. 366-67.) Dr. Dellar testified that, while Bactrian camels can deal with extreme temperatures, Respondent's camel was a dromedary and should not be exposed to the winter weather that prevailed during her inspections on January 3 and February 1, 1994, without additional shelter or bedding. (Tr. 283-84.) While Mr. King testified that he had experience with camels and the record reveals that Mr. King is generally knowledgeable regarding the care of camels, I find that, based on her training and experience, Dr. Dellar is more qualified than Mr. King to determine the needs of Respondent's camel with respect to shelter from cold weather. Moreover, Dr. Dellar's January 3, 1994, and February 1, 1994, inspection reports state that Respondent's attending veterinarian had recommended that the camel be housed in the heated barn or given additional bedding. (CX 19 at 2, CX 21 at unnumbered page between page 1 and page 2.)

   The record clearly establishes that Respondent violated 9 C.F.R. §§ 2.100(a) and 3.127(b), as alleged in paragraphs VII(C)(3), IX(B)(6), and X(C)(9) of the Complaint.

   Paragraphs IX(B)(1) and X(C)(3) of the Complaint allege that on January 3, 1994, and February 1, 1994, respectively, Respondent failed to maintain indoor housing facilities to protect nonhuman primates from temperature extremes and to provide for the health and well-being of nonhuman primates, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.76(a). Paragraphs IX(B)(5) and X(C)(8) of the Complaint allege that on January 3, 1994, and February 1, 1994, respectively, Respondent failed to sufficiently heat indoor housing facilities when necessary to protect animals from cold and to provide for their health and comfort, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.126(a). While the APHIS inspection forms, completed by Dr. Dellar after the January 3, 1994, and February 1, 1994, inspections, identify Respondent's failure to maintain heat in indoor housing facilities to protect animals from the cold, the record reveals that the drop in temperature in the indoor facility (a large heated barn) may have been very short in duration and may have been caused by the normal use of the door to the facility to bring in equipment and food for the animals, and to take out waste, and an incident in which Respondent's elephant pushed the door off its track. (CX 19 at 1 item 15, 2; CX 21 at 1 item 15, unnumbered page between page 1 and page 2; CX 22A; Tr. 67.) While indoor facilities should be kept heated to protect animals, the evidence of Respondent's violations of 9 C.F.R. §§ 2.100(a), 3.76(a), and 3.126(a), as alleged in paragraphs IX(B)(1), IX(B)(5), X(C)(3), and X(C)(8) of the Complaint, is not quite strong enough to reverse the ALJ.

    *40 Paragraphs IX(B)(2) and X(C)(4) of the Complaint allege that on January 3, 1994, and February 1, 1994, respectively, Respondent failed to provide nonhuman primates with food that was wholesome and free from contamination, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.82(a). The APHIS inspection forms, completed by Dr. Dellar after her January 3, 1994, and February 1, 1994, inspections, specifically address Respondent's failure to provide nonhuman primates with food that is wholesome and free from contamination, (CX 19 at 1 item 34, 2; CX 21 at 1 item 34, unnumbered page between page 1 and page 2).

   After her January 3, 1994, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #34 Feeding (3.82a) 2 cases of rotting bananas were brought in to feed the primates. Several loafs of old bread were found as well as produce marked for disposal. Feed shall be wholesome, nutritious, and palatable -- Correct by 01- 10-94.

CX 19 at 2. 

   Dr. Dellar testified that she determined that the bananas were rotting, based upon the appearance of the bananas, as follows:

   [BY MS. ALDEN:]

   Q. You also cited the facility for a violation, feeding violation with respect to the bananas and old bread?

   [BY DR. DELLAR:]

   A. Yes.

   Q. Did you make a determination that that food was not wholesome?

   A. By observation I could tell that the bananas were rotting.

   Q. They were too brown for you to eat?

   A. Correct.

   Q. And so, that was the basis upon which you determined they were too brown for the animals to eat?

   A. Also at that point they're not able to be sold from a grocery store.

   Q. How do you know that?

   A. Grocery stores get rid of bananas when they're black.

   Q. How do you know they weren't brought from a grocery store that day?

   A. They could have been.

   Q. There were no vermin in the bananas, were there; no pests?

   A. None that I documented.

Tr. 186-87. 

   After her February 1, 1994, inspection of site 2 on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #34 Feeding (3.82a 3.129a) The rotten produce from the last inspection was fed to the elephant. Other old and deteriorating vegetables were still being stored and fed to the animals.

CX 21 at unnumbered page between page 1 and page 2. 

   During her February 1, 1994, inspection of site two on Respondent's premises, Dr. Dellar took a photograph of the bananas that were rotting prior to their being fed to the elephant. (Tr. 91; CX 22G.) When shown CX 22G, Mr. King testified, as follows:

   [BY MS. DESKINS:]

   Q. Okay. Mr. King, I'm going to have to come up there to get some photographs.

   Mr. King, I've handed you a document that has been marked as Complainant's Exhibit number 22.

   [BY MR. KING:]

   A. Uh-huh.

   Q. And just to look on the back of it, it's been identified as G?

   A. Okay.

   Q. Now you would agree, as you've said previously, that the food item showing in that picture should not be stored like that?

    *41 A. No, it shouldn't. Could you tell me when this was taken?

   Q. Okay. This was taken February 1, 1994.

   A. Well, it could be -- it was cooler at that time, so it probably wouldn't be spoiled as fast as it would be if it was the summer, but it doesn't look real good.

Tr. 371-72. 

   The evidence clearly establishes that on January 3, 1994, Respondent failed to provide nonhuman primates with food that was wholesome and free from contamination, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.82(a), as alleged in paragraph IX(B)(2) of the Complaint. However, it is not clear from this record that Respondent fed or intended to feed the bananas or the vegetables identified in Dr. Dellar's February 1, 1994, inspection report to primates, and I find that the record is not quite strong enough to reverse that ALJ with respect to the violation alleged in paragraph X(C)(4) of the Complaint.

   Paragraph IX(B)(3) of the Complaint alleges that on January 3, 1994, Respondent failed to keep primary enclosures for nonhuman primates clean and spot-cleaned daily, in willful violation of 9 C.F.R. §§ 2.100(a), 3.75(c)(3), and 3.84(a). Paragraph X(C)(5) of the Complaint alleges that on February 1, 1994, Respondent failed to keep primary enclosures for nonhuman primates clean and sanitized, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.84(a), (b). The APHIS inspection forms, completed by Dr. Dellar after her January 3, 1994, and February 1, 1994, inspections, specifically address Respondent's failure to keep primary enclosures for nonhuman primates clean, (CX 19 at 1 item 36, 2; CX 21 at 1 item 36, unnumbered page between page 1 and page 2).

   After her January 3, 1994, inspection of site two on Respondent's premises, Dr. Dellar recorded the following on her inspection report:

   #36 Cleaning and Sanitation (3.84b2) The primate enclosures are not being totally cleaned and sanitized at least once every 2 weeks. Correct by: 01-10- 94.

 

CX 19 at 2. 

   During her February 1, 1994, inspection of site two on Respondent's premises, Dr. Dellar found a similar violation: failure to clean and sanitize primate enclosures at least once every 2 weeks. (CX 21 at 2.)

   Respondent did not rebut the evidence that on January 3, 1994, it failed to keep primary enclosures for nonhuman primates clean and spot-cleaned daily, in violation of 9 C.F.R. §§ 2.100(a), 3.75(c)(3), and 3.84(a), and that on February 1, 1994, it failed to keep primary enclosures for nonhuman primates clean and sanitized, in violation of 9 C.F.R. §§ 2.100(a), 3.84(a), and 3.84(b).

   Paragraph X(B) of the Complaint alleges that on February 1, 1994, Respondent handled animals in a manner that caused trauma, behavioral stress, physical harm, and unnecessary discomfort, in willful violation of 9 C.F.R. § 2.131. The APHIS inspection form, completed by Dr. Dellar after her February 1, 1994, inspection, specifically addresses the manner in which Respondent handled its animals, in violation of 9 C.F.R. § 2.131, (CX 21 at 1 item 47, unnumbered page between page 1 and page 2).

    *42 During her February 1, 1994, inspection of site two on Respondent's premises, Dr. Dellar found that:

   #47 Handling (2.131a1) One of the leg chains on the elephant was not covered. This elephant has a history of severe injuries to her legs from [illegible] unprotected leg chain. Correct by: 02-08-94.

 

CX 21 at unnumbered page between page 1 and page 2. 

   Dr. Dellar testified that she specifically remembered the elephant's leg chain, as follows:

   BY MS. DESKINS:

   Q. Okay. Can you please tell us what your memories are for that particular inspection. And by "that inspection", I'm referring to the inspection of February 1 of 1994.

   [BY DR. DELLAR:]

   A. I had two things that I remember distinctly about this. The first one was that when I conducted this inspection the elephant leg chain had been unguarded, meaning that when you normally chain an elephant's legs, you put some type of padding around the chain that actually touches the leg so that it doesn't cause abrasions.

   This facility has had in the past a history of having the chains cut the elephant's legs and cause severe lacerations of the elephant's legs. So, I was very concerned that this particular chain wasn't guarded and that the elephant had been agitated and that they had to chain both the front legs and the back legs; that she was poking holes in the barn walls, trying to get at the chimps caged in front of her. She was very agitated and working on the chains constantly trying to escape and break the chains.

   MS. ALDEN: Well, Your Honor, I'm going to object to the witness hypothesizing about why the elephant -- what the elephant was thinking at the time that it was moving about.

   JUDGE KANE: All right. Thank you, Counsel. Objection overruled. The question seeks the witness's recall; she saw unguarded leg chains.

   BY MS. DESKINS:

   Q. You can continue, Dr. Dellar.

   A. This -- so I was very concerned about the condition of the leg chains going from the previous history of this facility...

Tr. 88-89. 

   Mr. Stramaglia testified that Respondent did use an "unprotected" chain, but only for a short period of time, as follows:

   [BY MS. ALDEN:]

   Q. Was there an occasion upon which she had leg chains that were not protected?

   [BY MR. STRAMAGLIA:]

   A. Yes.

   Q. Would you explain how that occurred?

   A. Well, what happened was she had -- she was teething, and she was getting ready to drop a tooth and it was bothering her.

   Q. And how was that manifested; what did she act like?

   A. Well, you know, she wanted to keep rubbing her face and her tusks up against the wall and she was poking at the wall and rubbing her tusks on the ground, and we had contacted Dr. Kispert, and she had given us some medicine to give her. Thought maybe it was worms or something, but it wasn't and we treated her for that and then we took stool samples and so forth, and she came out and took some blood and it wasn't that. What happened was, you know, a while later she had dropped a tooth, and then after she dropped a tooth she started acting a little more normal.

    *43 Q. While she was experiencing the teething problem, what kind of action did she take?

   A. Did who take?

   Q. Twiggy.

   A. Well, she was real restless and we had to chain her away from the wall.

   Q. Why did you use an unprotected chain?

   A. Well, at that point in time, when the caretaker, Mel, had put the chain on her, he did not have any of the covering that we use for the chain. So, he had put the chain on her and like a day or so after that, he -- I wasn't there the next day, but the day after that, he came out to the park at the office and I was there and he was looking for some material to cover this chain. We had some stored in another area, so I went out there with him and we cut a few more pieces and went back to the barn and put it around the chain.

Tr. 397-98. 

   Nonetheless, there is no dispute that a leg chain used on the elephant for some period of time was not covered, and I find that on February 1, 1994, Respondent handled an animal in a manner that caused trauma, behavioral stress, physical harm, and unnecessary discomfort, in willful violation of 9 C.F.R. § 2.131, as alleged in paragraph X(B) of the Complaint.

   Paragraph X(C)(1) of the Complaint alleges that on February 1, 1994, Respondent failed to keep housing facilities for nonhuman primates and areas used for storing animal food and bedding free of an accumulation of trash, waste material, junk, weeds, and other discarded materials, in willful violation of 9 C.F.R. §§ 2.100(a) and 3.75(b). The APHIS inspection report, completed by Dr. Dellar after the February 1, 1994, inspection, specifically addresses Respondent's failure to keep facilities and storage areas free of an accumulation of trash, waste material, junk, weeds, and other discarded materials, (CX at 1 item 36, unnumbered page between page 1 and page 2). While the record does contain evidence of a violation of 9 C.F.R. § 3.75(b), it is not clear that the accumulation of items that are the subject of Dr. Dellar's February 1, 1994, inspection report, (CX 21), consists of trash, waste material, junk, weeds, and other discarded materials.

Findings of Fact

   1. Respondent, Volpe Vito, Inc., doing business as Four Bears Water Park and Recreation Area, is a corporation whose address is 3000 Auburn Road, Utica, Michigan 48087.

   2. Four Bears Water Park and Recreation Area covers approximately 125 acres in Utica, Michigan.

   3. Respondent has been in business since 1983 and at all times material to this proceeding exhibited animals.

   4. Four Bears Water Park and Recreation Area consists of two separate sites that are regularly inspected by APHIS. Site one is the water park that is open to the public from Memorial Day to Labor Day and is located at 3000 Auburn Road, Utica, Michigan. Site two is a winter holding area for the animals when the water park is closed and is located at 4751 22 Mile Road, Utica, Michigan.

   5. Approximately 100,000 people visit Four Bears Water Park and Recreation Area during the summer. While the price of admission ranges from $11.95 to $0 per person, the average price for the admission of one person is $5.

    *44 6. At all times material to this proceeding, Respondent was licensed and operating as an exhibitor, as defined in the Animal Welfare Act and the Regulations. When Respondent became licensed, and annually thereafter, Respondent received copies of the Animal Welfare Act, the Regulations, and the Standards and agreed in writing to comply with the Animal Welfare Act, the Regulations, and the Standards.

   7. From September 19, 1991, through February 1, 1994, Respondent's facility was inspected on nine different occasions by Dr. Lisa Dellar, a veterinarian employed by APHIS.

   8. On September 19, 1991, January 2, 1992, January 16, 1992, July 15, 1992, and October 20, 1992, Respondent failed to maintain complete records showing the acquisition, disposition, and identification of animals.

   9. On September 19, 1991, January 2, 1992, January 16, 1992, and August 10, 1993, Respondent failed to maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine and failed to provide veterinary care to animals in need of care.

   10. On September 19, 1991, July 15, 1992, October 20, 1992, September 14, 1993, and February 1, 1994, surfaces of Respondent's housing facilities for nonhuman primates were not constructed in a manner and made of materials that allow them to be readily cleaned and sanitized, or removed or replaced when worn, soiled, or rusted.

   11. On September 19, 1991, and January 2, 1992, Respondent failed to store supplies of food for nonhuman primates in a manner that protects the food from spoilage, contamination, and vermin infestation.

   12. On September 19, 1991, Respondent failed to develop, document, and follow an appropriate plan for environmental enhancement, adequate to promote the psychological well-being of nonhuman primates.

   13. On September 19, 1991, January 16, 1992, August 10, 1993, January 3, 1994, and February 1, 1994, Respondent failed to provide, for animals, facilities that were structurally sound and maintained in good repair so as to protect animals from injury, to contain animals, and to restrict the entrance of other animals.

   14. On September 19, 1991, January 2, 1992, July 15, 1992, August 10, 1993, and September 14, 1993, Respondent failed to store supplies of food adequately to protect them against deterioration, molding, or contamination by vermin, and on February 1, 1994, Respondent failed to store supplies of food adequately to protect them against deterioration, molding, or contamination by vermin, and refrigeration was not provided for supplies of perishable food.

   15. On September 19, 1991, and September 14, 1993, Respondent failed to keep water receptacles clean and sanitary.

   16.On September 19, 1991, January 2, 1992, and August 10, 1993, Respondent failed to keep the premises (buildings and grounds) clean and in good repair and free of accumulations of trash, and on February 1, 1994, Respondent failed to keep the premises (buildings and grounds) clean and in good repair.

    *45 17.On January 2, 1992, Respondent refused to allow APHIS to inspect its animals, facilities, and records, and on February 1, 1994, Respondent refused to allow APHIS to inspect its records.

   18.On January 2, 1992, Respondent failed to equip housing facilities for nonhuman primates with disposal facilities and drainage systems constructed and operated so that animal wastes and water are rapidly eliminated and the animals stay dry.

   19.On January 2, 1992, and September 14, 1993, Respondent failed to keep the premises, including buildings and surrounding grounds, clean.

   20.On July 15, 1992, Respondent failed to provide outdoor housing facilities for nonhuman primates which provide sufficient heat to protect nonhuman primates from temperatures falling below 45 £F.

   21.On July 15, 1992, and September 14, 1993, Respondent failed to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals.

   22.On October 20, 1992, and February 1, 1994, Respondent failed to provide animals with wholesome and uncontaminated food.

   23.On August 10, 1993, January 3, 1994, and February 1, 1994, Respondent failed to provide animals kept outdoors with adequate shelter from inclement weather.

   24.On January 3, 1994, Respondent failed to provide nonhuman primates with food that was wholesome and free from contamination.

   25.On January 3, 1994, Respondent failed to keep primary enclosures for nonhuman primates clean and spot-cleaned daily.

   26.On February 1, 1994, Respondent failed to keep primary enclosures for nonhuman primates clean and sanitized.

   27.On February 1, 1994, Respondent handled an animal in a manner that caused trauma, behavioral stress, physical harm, and unnecessary discomfort.

Conclusions of Law

   1. On September 19, 1991, January 2, 1992, January 16, 1992, July 15, 1992, and October 20, 1992, Respondent willfully violated 7 U.S.C. § 2140 and 9 C.F.R. § 2.75(b)(1) by failing to maintain complete records showing the acquisition, disposition, and identification of animals.

   2. On September 19, 1991, January 2, 1992, January 16, 1992, and August 10, 1993, Respondent willfully violated 9 C.F.R. § 2.40 by failing to maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine and failed to provide veterinary care to animals in need of care.

   3. On September 19, 1991, July 15, 1992, October 20, 1992, and September 14, 1993, Respondent willfully violated 9 C.F.R. §§ 2.100(a), 3.75(c)(1), and 3.80(a)(2)(ix) because surfaces of Respondent's housing facilities for nonhuman primates were not constructed in a manner and made of materials that allow the facilities to be readily cleaned and sanitized, or removed or replaced when worn, soiled, or rusted.

   4. On February 1, 1994, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.75(c)(1) because surfaces of Respondent's housing facilities for nonhuman primates were not constructed in a manner and made of materials that allow the facilities to be readily cleaned and sanitized, or removed or replaced when worn, soiled, or rusted.

    *46 5. On September 19, 1991, and January 2, 1992, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.75(e) by failing to store supplies of food for nonhuman primates in a manner that protects the food from spoilage, contamination, and vermin infestation.

   6. On September 19, 1991, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.81 by failing to develop, document, and follow an appropriate plan for environmental enhancement, adequate to promote the psychological well-being of nonhuman primates.

   7. On September 19, 1991, January 16, 1992, August 10, 1993, January 3, 1994, and February 1, 1994, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.125(a) by failing to provide facilities for animals that were structurally sound and maintained in good repair so as to protect animals from injury, to contain animals, and to restrict the entrance of other animals.

   8. On September 19, 1991, January 2, 1992, July 15, 1992, August 10, 1993, and September 14, 1993, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.125(c) by failing to store supplies of food adequately to protect them against deterioration, molding, or contamination by vermin, and on February 1, 1994, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.125(c) by failing to store supplies of food adequately to protect them against deterioration, molding, or contamination by vermin, and refrigeration was not provided for supplies of perishable foods.

   9. On September 19, 1991, and September 14, 1993, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.130 by failing to keep water receptacles clean and sanitary.

   10. On September 19, 1991, January 2, 1992, and August 10, 1993, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.131(c) by failing to keep the premises (buildings and grounds) clean and in good repair and free of accumulations of trash.

   11. On February 1, 1994, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.131(c) by failing to keep the premises (buildings and grounds) clean and in good repair.

   12. On January 2, 1992, Respondent willfully violated 7 U.S.C. § 2146 and 9 C.F.R. § 2.126 by refusing to allow APHIS to inspect its animals, facilities, and records, and on February 1, 1994, Respondent willfully violated 7 U.S.C. § 2146 and 9 C.F.R. § 2.126 by refusing to allow APHIS to inspect its records.

   13. On January 2, 1992, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.75(f) by failing to equip housing facilities for nonhuman primates with disposal facilities and drainage systems constructed and operated so that animal wastes and water are rapidly eliminated and the animals stay dry.

   14. On January 2, 1992, and September 14, 1993, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.84(c) by failing to keep the premises clean.

   15. On July 15, 1992, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.78(b) by failing to provide outdoor housing facilities for nonhuman primates which provide sufficient heat to protect nonhuman primates from temperatures falling below 45 £F.

    *47 16.On July 15, 1992, and September 14, 1993, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.127(c) by failing to provide a suitable method to rapidly eliminate excess water from outdoor housing facilities for animals.

   17.On October 20, 1992, and February 1, 1994, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.129(a) by failing to provide animals with wholesome and uncontaminated food.

   18.On August 10, 1993, January 3, 1994, and February 1, 1994, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.127(b) by failing to provide animals kept outdoors with adequate shelter from inclement weather.

   19.On January 3, 1994, Respondent willfully violated 9 C.F.R. §§ 2.100(a) and 3.82(a) by failing to provide nonhuman primates with food that was wholesome and free from contamination.

   20.On January 3, 1994, Respondent willfully violated 9 C.F.R. §§ 2.100(a), 3.75(c)(3), and 3.84(a) by failing to keep primary enclosures for nonhuman primates clean and spot-cleaned daily.

   21.On February 1, 1994, Respondent willfully violated 9 C.F.R. §§ 2.100(a), 3.84(a), and 3.84(b) by failing to keep primary enclosures for nonhuman primates clean and sanitized.

   22.On February 1, 1994, Respondent willfully violated 9 C.F.R. § 2.131 by handling an animal in a manner that caused trauma, behavioral stress, physical harm, and unnecessary discomfort.

Issues Raised By Respondent on Appeal to the Judicial Officer

   Respondent raises nine issues on appeal in Respondent's Appeal to the Secretary (hereinafter Respondent's Appeal) and Respondent's Response. First, Respondent contends that the Complaint should be dismissed in its entirety because:

   . . . [T]he ALJ determined that "Dr. Dellar, as an Inspector, Tr 305) was employed to procure evidence which was memorialized in reports, (Tr 302) prepared in anticipation of litigation, (Tr 153-154) and which were composed with the purpose of putting respondent out of business as an animal exhibitor." (Cx 7, 20; Tr 194). Further, the ALJ determined that Dr. Dellar was encouraged in this activity by her supervisors, (CX 23; Tr 195) and supported in the presentation of her testimony by counseling off-the-record with the government attorneys subsequent to the commencement of cross examination" (Tr. 298-299; Initial Decision and Order, pp 19-20).

   Based upon these revelations, the ALJ held that "the evidence," of Dr. Dellar "both verbal, and in the reports of each of the inspections," were "bias" and did "not constitute substantial evidence". (Initial Decision and Order, pp 19- 20).

Respondent's Appeal at 3. 

   Respondent's description of the ALJ's erroneous determination that Dr. Dellar's testimony and inspection reports did not constitute substantial evidence is generally accurate. However, there is no basis in the record for the ALJ's finding that Dr. Dellar's testimony and the inspection reports she completed after each inspection of Respondent's premises did not constitute substantial evidence of Respondent's violations of the Animal Welfare Act, the Regulations, and the Standards.

    *48 The ALJ found that:

   Dr. Dellar, as an inspector, (Tr. 305) was employed to procure evidence which was memorialized in reports, (Tr. 302) prepared in anticipation of litigation, (Tr. 153-154) and which were composed with the purpose of putting respondent out of business as an animal exhibitor. (CX 7, 20; Tr. 194) Dr. Dellar was encouraged in this activity by her supervisors, (CX 23; Tr. 195) and supported in the presentation of her testimony by counseling off-the-record with the Government attorney subsequent to the commencement of cross-examination. (Tr. 298-299) Therefore, the evidence, both verbal, and in the reports of each of the inspections, display a bias which suggests to a reasonable mind that the facts assertedly established by Dr. Dellar's recordings did not exist to the extent or to the degree complaint counsel contend, and hence do not constitute substantial evidence...

Initial Decision and Order at 19-20. 

   It is the consistent practice of the Judicial Officer to give great weight to the findings by ALJs since they have the opportunity to see and hear witnesses testify. [FN18] However, in some circumstances, the Judicial Officer has reversed as to the facts where: (1) documentary evidence or inferences to be drawn from the facts are involved, In re Gerald F. Upton, 44 Agric. Dec. 1936, 1942 (1985); In re Dane O. Petty, 43 Agric. Dec. 1406, 1421 (1984), aff'd, No. 3-84-2200-R (N.D. Tex. June 5, 1986); In re Aldovin Dairy, Inc., 42 Agric. Dec. 1791, 1797-98 (1983), aff'd, No. 84-0088 (M.D. Pa. Nov. 20, 1984); In re Leon Farrow, 42 Agric. Dec. 1397, 1405 (1983), aff'd in part and rev'd in part, 760 F.2d 211 (8th Cir. 1985); In re King Meat Co., 40 Agric. Dec. 1468, 1500-01 (1981), aff'd, No. CV 81-6485 (C.D. Cal. Oct. 20, 1982), remanded, No. CV 81-6485 (C.D. Cal. Mar. 25, 1983) (to consider newly discovered evidence), order on remand, 42 Agric. Dec. 726 (1983), aff'd, No. CV 81-6485 (C.D. Cal. Aug. 11, 1983) (original order of Oct. 20, 1982, reinstated nunc pro tunc), aff'd, 742 F.2d 1462 (9th Cir. 1984) (unpublished) (not to be cited as precedent under 9th Circuit Rule 21); (2) the record is sufficiently strong to compel a reversal as to the facts, In re Eldon Stamper, 42 Agric. Dec. 20, 30 (1983), aff'd, 722 F.2d 1483 (9th Cir. 1984), reprinted in 51 Agric. Dec. 302 (1992); or (3) an ALJ's findings of fact are hopelessly incredible, Fairbank v. Hardin, 429 F.2d 264, 268 (9th Cir.), cert. denied, 400 U.S. 943 (1970); In re Rosia Lee Ennes, 45 Agric. Dec. 540, 548 (1986).

   Moreover, the Judicial Officer is not bound by the ALJ's credibility determinations, and may make separate determinations of witnesses' credibility, subject only to court review for substantial evidence. Mattes v. United States, 721 F.2d 1125, 1128-29 (7th Cir. 1983). [FN19]

   Dr. Dellar testified that she was employed by APHIS with Regulatory Enforcement of Animal Care, that she performs animal welfare inspections, (Tr. 13), and that she conducts these inspections in her capacity as an inspector for USDA. (Tr. 305.) Dr. Dellar testified that each year she conducts approximately 350 site inspections, (Tr. 22), and that she finds nearly 50 percent of the facilities she inspects to have no violations of the Animal Welfare Act, the Regulations, or the Standards, (Tr. 178). While Dr. Dellar found numerous aspects of Respondent's facilities that were not in compliance with the Animal Welfare Act, the Regulations, and the Standards, a review of her inspection reports, (CX 3, 4, 5, 8, 9, 12, 14, 19, 21), reveals that Dr. Dellar found Respondent's facility to be in compliance with most provisions of Animal Welfare Act, the Regulations, and the Standards during each of her nine inspections of Respondent's premises. Dr. Dellar's inspection reports also reveal that she identified corrections made by Respondent since her previous inspection. (CX 3 at 2, 4; CX 5 at 2, 4; CX 8 at 2, 4; CX 9 at 2, 4; CX 12 at 2; CX 14 at 2, 5; CX 19 at 2; CX 21 at unnumbered page between page 1 and page 2.) Moreover, even when reporting concerns she had regarding the quality of the animal husbandry at Respondent's facility, Dr. Dellar began by stating that, on her January 16, 1992, inspection, she found site two on Respondent's premises "was much cleaner and most of the noncompliant standards were corrected." (CX 7.)

    *49 Dr. Dellar did state in a memorandum that she wrote to her supervisor regarding Respondent's facility, on January 7, 1994, that:

   I am extremely concerned about this facility. As you know, we have had a case pending at this facility for nearly 2 years. Now, I feel the agency needs to take an agressive [sic] stance and get these folks out of the animal business. This urgency is prompted by my last inspection of 01-03-94. . . .

CX 20 at 1. While, by January 7, 1994, Dr. Dellar had come to the conclusion that APHIS needed to take an aggressive stance and get Respondent out of the animal business, (CX 20; Tr. 194-95), I find nothing in the record to support the ALJ's determination that Dr. Dellar's testimony and inspection reports "display a bias which suggests to a reasonable mind that the facts assertedly established by Dr. Dellar's recordings did not exist to the extent or to the degree complaint counsel contend, and hence do not constitute substantial evidence." (Initial Decision and Order at 19-20.)

   In proceedings conducted under the Administrative Procedure Act, "[a] sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence." (5 U.S.C. § 556(d) (emphasis added).) "Substantial evidence" denotes quantity, Steadman v. SEC, supra, 450 U.S. at 98, and it is generally defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Cox v. United States Dep't of Agric., 925 F.2d 1102, 1104 (8th Cir. 1991).

   I infer, based upon Dr. Dellar's description of her employment status, (Tr. 12- 13), that Dr. Dellar was a salaried USDA employee and that her salary, benefits, and continued employment by USDA were not dependent upon her findings during her inspections of Respondent's premises. Dr. Dellar had no reason to record her findings in other than an impartial fashion or to give false testimony. I find nothing in the record that indicates that Dr. Dellar's testimony or inspection reports are inaccurate or false. The pictures taken by Dr. Dellar, which were introduced into evidence, and the testimony given by Respondent's witnesses support many of the findings that Dr. Dellar included in her inspection reports and testified to at the hearing.

   Further, I disagree with the ALJ's finding that the "encouragement" that Dr. Dellar received from her supervisors detracts from the weight to be given Dr. Dellar's testimony or the inspection reports Dr. Dellar completed after each inspection of Respondent's premises.

   Further still, the ALJ states and Respondent contends that Dr. Dellar's testimony and inspection reports do not constitute substantial evidence because Dr. Dellar was "supported in the presentation of her testimony by counseling off-the-record with the Government attorney subsequent to the commencement of cross-examination. (Tr. 298-99)" (Initial Decision and Order at 19.)

    *50 The record does establish that Ms. Deskins and Dr. Dellar discussed Dr. Dellar's testimony after Dr. Dellar's direct-examination and cross-examination, but prior to Dr. Dellar's redirect-examination and recross-examination, as follows:

RECROSS-EXAMINATION

   BY MS. ALDEN:

   Q. Now Dr. Dellar, you've -- over the break from last night when you completed your cross-examination, you've discussed your testimony, haven't you?

   (No response)

   Do you not remember? I've noticed you're hesitating.

   [BY DR. DELLAR:]

   A. I don't know if I want to say we discussed my testimony. We did meet in the hotel room last night and went over the questions that you asked me.

   Q. But you don't call that discussing your testimony; is that what you're telling the Court?

   A. I guess we had a discussion of what occurred and it wasn't focused on my testimony, it was a combination of what you had asked as well.

   Q. So your discussion was both of my questions and your answers?

   A. And her questions as well.

   Q. Now, didn't you very specifically yesterday testify that you did not read Dr. Kispert's entire medical report on Washington?

   A. Yes, I did say that.

   Q. And didn't you specifically testify yesterday that you did not rely on the entirety of that report in coming to your conclusion regarding the cause of death?

   A. Yes, I did say that.

   Q. And didn't you specifically sit in that witness chair yesterday for several moments and read through the entirety of Dr. Kispert's records regarding Washington?

   A. Yes, I did.

   Q. And it's only today that you now remember that those answers yesterday were wrong and that you had, in fact, previously read through that record?

   A. I had forgotten that I had gone through the record.

   Q. Had you forgotten it up until the time you discussed your testimony last evening?

   A. Yes. I was reminded that I had gone through the records.

Tr. 298-300. 

   As an initial matter, I cannot find that any "counseling off-the-record" during the hearing in this proceeding conducted August 16-17, 1994, could possibly have any effect on the reliability or probative value of Dr. Dellar's inspection reports, (CX 3, 4, 5, 8, 9, 12, 14, 19, 21), the last of which Dr. Dellar prepared on February 1, 1994, 6 1/2 months prior to the off-the-record counseling referenced by the ALJ. (Initial Decision and Order at 19.)

   Further, off-the-record discussions between counsel and counsel's witnesses are not prohibited by either the Administrative Procedure Act or the Rules of Practice. Moreover, I cannot find any instruction by the ALJ on this record either to Dr. Dellar or to Ms. Deskins that they were not to discuss Dr. Dellar's testimony off-the-record. Moreover, there is nothing on this record to indicate that Ms. Deskins suborned perjury, that the off-the-record discussion between Dr. Dellar and Ms. Deskins resulted in Dr. Dellar's giving perjured testimony, or that Respondent was in any way prejudiced by any off-the-record discussion between Ms. Deskins and Dr. Dellar.

    *51 Second, Respondent contends that:

   In Young v USDA, 53 F 3d 728 (CA 5, 1995), the Court dismissed the Complaint on facts strikenly [sic] similar to those now before the Secretary.

   The Young court held that the affidavits and summary reports prepared by the Veterinary Medical Officers (MVO) [sic] lacked probative value and reliability where they were prepared in anticipation of administrative proceedings and where the VMO were given instructions regarding how to prepare documents by agency attorneys. Young, 53 F 3d at 730.

   Accordingly, as in Young, supra., the complaint against respondent should be dismissed.

Respondent's Appeal at 3-4. 

   I disagree with Respondent's contention that the facts in Young v. United States Dep't of Agric., 53 F.3d Cir. 728 (5th Cir. 1995) (2-1 decision), are similar to the facts in the instant proceeding. The documents that the Young court found were prepared in anticipation of litigation were affidavits of two veterinary medical officers and a USDA Summary of Alleged Violations form completed after an inspection conducted in accordance with the Horse Protection Act of 1970, as amended (hereinafter Horse Protection Act), (15 U.S.C. §§ 1821-1831). The Young court found that the Veterinary Medical Officers' testimony in the case revealed that as a general practice Veterinary Medical Officers prepare USDA Summary of Alleged Violations forms and affidavits only when administrative proceedings are anticipated. The court found even more important the fact that the Veterinary Medical Officers admitted that they only included observations indicating a violation of the Horse Protection Act. Further, the court found relevant the fact that the Veterinary Medical Officers also indicated that they were given instructions regarding how to prepare the documents by USDA attorneys so that the documents would support a USDA complaint under the Horse Protection Act. The Young court concluded, based on these factors that, although the authors of the affidavits and the Summary of Alleged Violations forms may have been objective in forming their opinion, the documents themselves admittedly recorded a biased account of the results of the inspection and that their probative value is limited. Young at 730-31.

   Exhibitors licensed under the Animal Welfare Act are regularly inspected. Unlike the documents that were at issue in Young, Animal Welfare Act inspection reports (APHIS Form 7008, Animal Care Inspection Report (previously entitled Inspection of Animal Facilities, Sites or Premises [FN20])) are prepared after each inspection whether violations of the Animal Welfare Act, the Regulations, and the Standards are found or not found. Each inspection report indicates those aspects of the inspected facility that are found in compliance with the Animal Welfare Act, the Regulations, and the Standards, as well as those aspects of the facility that are found to be in violation of the Animal Welfare Act, the Regulations, and the Standards. Moreover, a correction date is noted on inspection reports for each aspect of a facility that is found in violation of the Animal Welfare Act, the Regulations, and the Standards, and, if a previous violation is found on a subsequent inspection to have been corrected, the correction is noted on that subsequent inspection report. Neither the method by which facilities subject to the Animal Welfare Act are chosen to be inspected nor the manner in which the inspection reports are completed support a conclusion that the inspection reports are prepared in anticipation of litigation. Further, Dr. Dellar's inspection reports identify those aspects of Respondent's facility which complied with, as well as those aspects of Respondent's facility which did not comply with, the Animal Welfare Act, the Regulations, and the Standards. (CX 3, 4, 5, 8, 9, 12, 14, 19, 21; Tr. 18-19.)

    *52 Moreover, while Dr. Dellar knew of the possibility of the institution of an administrative proceeding against Respondent, (CX 7, 20), Dr. Dellar testified that she did not conduct her inspections of Respondent's premises or complete her inspection reports in the context of developing a case against Respondent, as follows:

   BY MS. ALDEN:

   Q. Well, my question is didn't you conduct your inspections in the context of a case that was already going on against this facility?

   [BY DR. DELLAR:]

   A. And I have to say no, I don't do that. But I do collect evidence and send it on to a case that is already pending. But --so I don't go in with the mental frame that these folks already have a case against them. I go in with, this is a new inspection, whatever happens, happens. But once I collect the evidence, then it's added to a case. That's my mental thinking when I go in.

   Q. Well, you certainly thought it was important enough on the 17th day of January 1992 to report it to your supervisor, didn't you?

   A. Yes, I did.

   Q. So you may not have thought about it when you went into the inspection on January 16th, but you did think about it when you came out of the inspection and wrote the memo on January 17th; didn't you?

   . . . .

   THE WITNESS: Yes.

   BY MS. ALDEN:

   Q. Now when you made the further comment to your supervisor, "If you need anything else, let me know." What did you mean?

   A. Oh, frequently they'll ask me to go back and get an affidavit, or go back and take a picture, or go back and do this, or go back and do that. So I always put that in as if -- if I didn't do anything or if I left something out that you want, some kind of information, let me know and I'll go back.

   Q. Now, did you mean with respect to the case in Vermont or with respect to your inspections?

   A. Oh, I -- my inspections. I have nothing to do with Vermont.

   Q. And did your supervisor indicate to you that there was anything else that she needed or he needed?

   A. No.

Tr. 153-55. 

   Finally, unlike Young, there is nothing in this record to indicate that Dr. Dellar received any instructions from USDA attorneys regarding how to prepare her inspection reports so that they would support a Complaint instituted under the Animal Welfare Act against Respondent. There is no basis for finding that the facts surrounding Dr. Dellar's preparation of inspection reports after inspection of Respondent's premises, (CX 3, 4, 5, 8, 9, 12, 14, 19, 21), are similar to the facts surrounding the preparation of the affidavits and Summary of Alleged Violations form at issue in Young.

   Third, Respondent contends that the sanction of revocation of Respondent's Animal Welfare Act license is too harsh.

   Specifically, Respondent contends that:

   Arguendo, it cannot now be asserted respondent willfully or otherwise attempted to falsify records as was the case in Cox v USDA, 925 F 2d 1102 (CA 8, 1991), wherein the Secretary imposed a civil penalty and 90 day suspension deemed appropriate to serve the remedial purpose of the Act. The facts in Cox were more egregious than those presented here, yet the sanctions sought more draconian. Especially where, as here, the ALJ determined that respondent operated a large business without incident from the time it was licensed, had never been convicted of any violation of state or local regulations involving treatment, care, or handling of animals (Initial Decision and Order, pp 11, 26; Tr 384-385), and that respondent not only attempted to correct violations (Tr 391) but indeed enacted certain measures in order to correct any violations noted by APHIS in order to prevent their reoccurrence [sic] in the future (Initial Decision and Order, pp 18, 26; Tr 405).

*53  Respondent's Appeal at 4-5. 

   I agree with Respondent and the ALJ that Respondent operated a large business under the Animal Welfare Act and that there is no evidence that Respondent has previously been convicted of any violation of state or local regulations involving treatment, care, or handling of animals. (Initial Decision and Order at 26; Respondent's Appeal at 4-5.) I agree with Respondent that Respondent attempted to correct some of the violations identified during APHIS inspections of Respondent's premises, and I find further that Respondent actually did correct some of the violations identified during those inspections. (CX 3 at 2, 4; CX 5 at 2, 4; CX 8 at 2, 4; CX 9 at 2, 4; CX 12 at 2; CX 14 at 2, 5; CX 19 at 2; CX 21 at unnumbered page between page 1 and page 2.) Moreover, the record reveals that Respondent did institute measures to prevent reoccurrence of violations in the future, which Mr. Stramaglia described, as follows:

   [BY MS. ALDEN:]

   Q. Mr. Stramaglia, would you describe, in a general way, what the response has been from you as the person who runs the park, in an effort to comply with the violations that have been noted by the Department?

   [BY MR. STRAMAGLIA:]

   A. Yes. Well, what we did is we tried to beef up our staff a little bit, we tried to clean up our record keeping, tried to do a little more clean up as far as the husbandry is concerned at the facility and we try to get a little better qualified people. It's -- sometimes it's hard, but, you know, we've been making an honest effort.

   Q. What kind of advertising do you do for help for employees at the park?

   A. We advertise in the local papers and trade magazines.

Tr. 405. 

   Nonetheless, each dealer, exhibitor, operator of an auction sale, and intermediate handler must always be in compliance in all respects with the Regulations in 9 C.F.R. Part 2 and the Standards in 9 C.F.R. Part 3. (9 C.F.R. § 2.100(a).) This duty exists regardless of a "correction date" suggested by an APHIS inspector who notes the existence of a violation. While corrections are to be encouraged and may be taken into account when determining the sanction to be imposed, even the immediate correction of a violation does not operate to eliminate the fact that a violation occurred and does not provide a basis for the dismissal of the alleged violation. In re Big Bear Farm, Inc., supra, 55 Agric. Dec. at 142; In re Pet Paradise, Inc., supra, 51 Agric. Dec. at 1070. Moreover, the record reveals that Respondent repeatedly and willfully failed to comply with the Animal Welfare Act, the Regulations, and the Standards. On each of the nine inspections conducted by Dr. Dellar, she found numerous violations of the Regulations and the Standards, (CX 3, 4, 5, 8, 9, 12, 14, 19, 21). I find that the record clearly establishes that Respondent committed 51 violations of the Animal Welfare Act, the Regulations, and the Standards during the period September 19, 1991, through February 1, 1994, many of which were very serious violations and could have affected the health of Respondent's animals.

    *54 Fourth, Respondent contends that it cannot now be asserted that Respondent willfully falsified or attempted to falsify records. (Respondent's Appeal at 4.) While anything may be asserted, if Respondent's point is that there is no evidence on this record that Respondent falsified or attempted to falsify records required to be kept under the Animal Welfare Act, I agree with Respondent. Further, the Complaint does not contain an allegation that Respondent falsified or attempted to falsify records required to be kept under the Animal Welfare Act.

   Fifth, Respondent contends that:

   . . . [T]he record does not reflect a willful failure or intent on the part of [R]espondent to correct any asserted violation of the [Animal Welfare] Act or willful refusal in bad faith to allow inspections or records or facalities [sic] repeatedly or otherwise[.] . . .

Respondent's Appeal at 5. 

   I disagree with Respondent's contention that the record does not reflect a willful failure to correct violations of the Animal Welfare Act found during inspection of Respondent's premises. Respondent violated the Animal Welfare Act, the Regulations, and the Standards 51 times during the period September 19, 1991, through February 1, 1994. While Respondent did make some corrections after violations were discovered during APHIS inspections, often the violations found on one inspection were similar to or identical to violations found on previous inspections.

   Further, while I am not certain what Respondent means by a "willful refusal in bad faith," (Respondent's Appeal at 5), to allow inspections, the record does reveal that Respondent willfully violated 7 U.S.C. § 2146 and 9 C.F.R. § 2.126 on two occasions, January 2, 1992, and February 1, 1994, when Respondent refused to allow APHIS to inspect its animals, facilities, and records. (Initial Decision and Order at 27.) On the first occasion, Respondent's manager began using profanities and asked Dr. Dellar to leave, (CX 4 at 2; Tr. 39-40), and on the second occasion, Respondent's employees refused to provide Dr. Dellar access to Respondent's records because Respondent's owner was absent, (CX 21 at unnumbered page between page 1 and page 2). Despite measures taken by Respondent after each incident to ensure that APHIS had access to Respondent's facility, animals, and records, in the future, Respondent's violations of 7 U.S.C. § 2146 and 9 C.F.R. § 2.126 were willful.

   An action is willful under the Administrative Procedure Act, (5 U.S.C. § 558(c)), if a prohibited act is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. Cox v. United States Dep't of Agric., supra, 925 F.2d at 1105; Finer Foods Sales Co. v. Block, 708 F.2d 774, 777-78 (D.C. Cir. 1983); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 997 (1981); George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.) cert. denied, 419 U.S. 830 (1974); Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); Eastern Produce Co. v. Benson, 278 F.2d 606, 609 (3d Cir. 1960); In re Big Bear Farm, Inc., supra, 55 Agric. Dec. at 138; In re Julian J. Toney, supra, 54 Agric. Dec. at 971; In re Zoological Consortium of Maryland, Inc., supra, 47 Agric. Dec. at 1284; In re David Sabo, supra, 47 Agric. Dec. at 554. [FN21] See also Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187 n.5 (1973). ("'Wilfully' could refer to either intentional conduct or conduct that was merely careless or negligent.") United States v. Illinois Central R.R., 303 U.S. 239, 242-43 (1938) ("In statutes denouncing offenses involving turpitude, 'willfully' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, shows that it often denotes that which is "intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize 'conduct marked by careless disregard whether or not one has the right so to act."')

    *55 Respondent was fully aware of the provisions in the Animal Welfare Act and the Regulations requiring Respondent to provide APHIS with access to Respondent's facilities, animals, and records. Section 16 of the Animal Welfare Act, (7 U.S.C. § 2146), is published in the Statutes at Large and the United States Code, and Respondent is presumed to know the law. See Atkins v. Parker, 472 U.S. 115, 130 (1985); North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 (1925). Further, section 2.126 of the Regulations, (9 C.F.R. § 2.126), is published in the Federal Register, thereby constructively notifying Respondent of that section of the Regulations. See FCIC v. Merrill, 332 U.S. 380, 385 (1947); Bennett v. Director, Office of Workers' Compensation Programs, 717 F.2d 1167, 1169 (7th Cir. 1983); Diamond Ring Ranch, Inc. v. Morton, 531 F.2d 1397, 1405 (10th Cir. 1976). Moreover, Respondent admitted that it received a copy of the Animal Welfare Act, the Regulations, and the Standards when it became licensed, and annually thereafter, and agreed in writing to comply with the Animal Welfare Act, the Regulations, and the Standards. (Answer ¶ I(C).) Further, Mr. Stramaglia testified that Respondent was made aware of the violation of 7 U.S.C. § 2146 and 9 C.F.R. § 2.126 on January 2, 1992, and took measures to ensure that a refusal to allow APHIS to inspect its animals, facilities, and records, in violation of 7 U.S.C. § 2146 and 9 C.F.R. § 2.126, would not occur in the future. (Tr. 395.) Despite constructive and actual knowledge of the inspection provisions of Animal Welfare Act and the Regulations and knowledge of the failure to provide access to Respondent's facility, animals, and records in January 1992, Respondent again violated the Animal Welfare Act and the Regulations by refusing to provide APHIS with access to its records on February 1, 1994. These facts clearly support a finding that Respondent's violations of 7 U.S.C. § 2146 and 9 C.F.R. § 2.126 were willful. [FN22]

   Sixth, Respondent contends that the revocation of Respondent's Animal Welfare Act license is disproportionate to sanctions imposed in Cox v. United States Dep't of Agric., supra, and Lesser v. Espy, 34 F.3d 1301 (7th Cir. 1994). (Respondent's Appeal at 4-5.) Respondent violated the Animal Welfare Act, the Regulations, and the Standards 51 times during the period from September 19, 1991, through February 1, 1994. Many of Respondent's violations were serious violations and many of Respondent's violations involved Respondent's failure to provide for the humane care of its animals, which is the principal purpose of the Animal Welfare Act. I find that the facts of this case not only warrant revocation of Respondent's Animal Welfare Act license and a cease and desist order, as would have been imposed by the ALJ had the case not been appealed to me, but also, the circumstances in this case warrant the assessment of a civil penalty. The sanction I am imposing is relatively severe. However, as discussed infra, pp. 121-23, the sanction is appropriate under the circumstances in this case and in accordance with the Animal Welfare Act and the Department's sanction policy.

    *56 Further, I find Respondent's argument that the sanction imposed on it is disproportionate to the sanctions imposed in Cox, in which Petitioners were assessed a civil penalty of $12,000 and a 90-day suspension of their Animal Welfare Act license, and Lesser, in which Petitioners were assessed a civil penalty of $9,750 and a 30-day license suspension, without merit. First, the imposition of a sanction within the authority of an administrative agency is not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases. Butz v. Glover Livestock Comm'n Co., supra, 411 U.S. at 187-88; FCC v. WOKO, Inc., 329 U.S. 223, 227-28 (1946); Cox v. United States Dep't of Agric., supra, 925 F.2d at 1107; Spencer Livestock Comm'n Co. v. Department of Agric., 841 F.2d 1451, 1456-57 (9th Cir. 1988); Lawrence v. Commodity Futures Trading Comm'n, 759 F.2d 767, 776 (9th Cir. 1985); Sartain v. SEC, 601 F.2d 1366, 1375 (9th Cir. 1979); General Securities Corp. v. SEC, 583 F.2d 1108, 1110 (9th Cir. 1978) (per curiam); Hiller v. SEC, 429 F.2d 856, 858-59 (2d Cir. 1970). Second, the facts in Cox and Lesser are not similar to the facts in the instant proceeding.

   Seventh, Respondent contends that:

   Respondent recognizes that his failing health does not excuse violations of the [Animal Welfare] Act; however, [R]espondent urges the Secretary to consider this factor in militation [sic] of a less severe sanction . . . .

Respondent's Response at 1. 

   The record reveals that Respondent's president was in failing health. Dr. Dellar states in a January 7, 1994, memorandum to her supervisor that Mr. Stramaglia's "health has been failing and without his constant presence the employees have no real direction/motivation -- that is the reason for the decline of conditions at this facility." (CX 20 at 2.) While I sympathize with Respondent's president, the health of one of the employees of Respondent, even a key employee such as Mr. Stramaglia, is not required to be taken into consideration when determining the appropriate sanction for a violation of the Animal Welfare Act, the Regulations, or the Standards, and Mr. Stramaglia's failing health forms no part of the basis for the sanction imposed in this case. The principal purpose of the Animal Welfare Act is the humane care of animals. If the failing health of a person charged with caring for animals renders that person incapable of complying with the Animal Welfare Act, the Regulations, and the Standards, individuals healthy enough to ensure that the facility complies with the Animal Welfare Act, the Regulations, and the Standards should be employed either to assist or to replace those who are not capable of ensuring compliance with the Animal Welfare Act, the Regulations, and the Standards. Mr. Stramaglia's failing health, although unfortunate, cannot be considered, either as a defense to Respondent's violations of the Animal Welfare Act, the Regulations, and the Standards, or as a mitigating factor.

    *57 Eighth, Respondent contends that the Initial Decision and Order "IMPOSING THE SANCTION OF LICENSE REVOCATION SHOULD BE SET ASIDE . . . WHERE THE COMPLAINT REQUESTED RELIEF OF SUSPENSION." (Respondent's Response at 1.)

   Complainant requests much more than suspension of Respondent's Animal Welfare Act license in the Complaint, as follows:

   The Animal and Plant Health Inspection Service requests:

   . . . .

   2. That such order or orders be issued as are authorized by the [Animal Welfare] Act and warranted under the circumstances, including an order:

   (a) Requiring the [R]espondent to cease and desist from violating the [Animal Welfare] Act and the [R]egulations and [S]tandards issued thereunder;

   (b) Assessing civil penalties against the [R]espondent in accordance with section 19 of the [Animal Welfare] Act (7 U.S.C. § 2149); and

   (c) Suspending the [R]espondent's license under the [Animal Welfare] Act.

Complaint at 15-16. 

   The ALJ's order revoking Respondent's Animal Welfare Act license is an order authorized by section 19(a) of the Animal Welfare Act, (7 U.S.C. § 2149(a)), and revocation is warranted under the circumstances. The ALJ's order clearly falls within the order requested by Complainant in the Complaint. Moreover, Complainant specifically requested that the ALJ revoke Respondent's Animal Welfare Act license in Complainant's Amended Proposed Findings of Fact, Conclusions of Law, Order and Brief in Support Thereof at 45, and requests that the ALJ's revocation of Respondent's Animal Welfare Act license be affirmed in Complainant's Appeal at 28.

   Ninth, Respondent contends that Complainant's Appeal is untimely filed and should not be considered. (Respondent's Response at 4.)

   Section 1.145(a) of the Rules of Practice provides:

   § 1.145 Appeal to Judicial Officer.

   (a) Filing of petition. Within 30 days after receiving service of the Judge's decision, a party who disagrees with the decision, or any part thereof, or any ruling by the Judge or any alleged deprivation of rights, may appeal such decision to the Judicial Officer by filing an appeal petition with the Hearing Clerk. . . .

7 C.F.R. § 1.145(a). The record does not reveal when Complainant was served with the Initial Decision and Order. In any event, the Judicial Officer granted Complainant an extension of time until January 5, 1996, in which to file an appeal and Complainant filed an appeal on that date. Therefore, Respondent's request that I strike Complainant's Appeal is denied.

Issues Raised By Complainant on Appeal to the Judicial Officer

   Complainant raises five issues in Complainant's Appeal. First, Complainant contends that the ALJ erroneously dismissed the violations alleged in paragraph II of the Complaint based on the ALJ's finding that the inspection report completed by Dr. Dellar immediately after her September 19, 1991, inspection, (CX 3), is illegible. (Complainant's Appeal at 6-8.)

   I agree with Complainant. First, while I found portions of CX 3 difficult to read, I did not find CX 3 illegible. Moreover, during her testimony, Dr. Dellar read much of CX 3 into the record, (Tr. 28-31.)

    *58 Second, Complainant contends that: (1) the ALJ's finding that Dr. Dellar is biased, is in error; and (2) the ALJ's findings that Dr. Dellar's testimony and Dr. Dellar's inspection reports, which she completed immediately after each inspection of Respondent's premises, do not constitute substantial evidence of the violations of the Animal Welfare Act, the Regulations, and the Standards alleged in paragraphs II, III(B), III(D)(1)-(7), IV(B), IV(C)(1)-(6), V(B)(1)- (6), VI(B)(1)-(2), VII(A), VII(B), VII(C)(1)-(6), VIII(A)(1)-(7), IX(A), IX(B)(1)-(6), X(B), and X(C)(1)-(11) of the Complaint, are in error. (Complainant's Appeal at 8-22.) I agree with Complainant that the ALJ's finding that Dr. Dellar's testimony and inspection reports do not constitute substantial evidence, is in error. I discussed the reasons for my disagreement with the ALJ regarding the reliability and probative value of Dr. Dellar's testimony and inspection reports supra, pp. 93-104, in response to Respondent's contention that the Complaint should be dismissed in its entirety because the ALJ found Dr. Dellar to be biased. Further, I discussed the evidence of Respondent's violations of the Animal Welfare Act, the Regulations, and the Standards supra, pp. 18-84. I agree with Complainant that the ALJ dismissed many violations alleged in the Complaint that Complainant has proven by at least a preponderance of the evidence. Specifically, I agree with Complainant that, in addition to the violations found by the ALJ, Complainant has carried its burden of proof by a preponderance of the evidence that Respondent violated the Animal Welfare Act, the Regulations, and the Standards, as alleged in paragraphs II(A); II(B); II(C)(1)-(6), (8); III(B); III(D)(1)- (2), (4)-(5), (7); IV(B); IV (C)(1); V(B)(1)-(4); VI(B)(1)-(2); VII(B); VII(C)(1)-(4); VIII(A)(1)-(2), (5)-(7); IX(B)(2)-(4), (6); X(B); and X(C)(2), (5)-(7), (9)-(11) of the Complaint.

   While the Complainant has a prima facie case with respect to the violations alleged in paragraphs II(C)(7), (9); III(D)(3), (6); IV(C)(2)-(6); V(B)(5)-(6); VII(A); VII(C)(5)-(6); VIII(A)(4); IX(A); IX(B)(1), (5); and X(C)(1), (3)-(4), (8) of the Complaint, I find that the evidence is not as strong as that customarily necessary in these types of cases to support reversal of the ALJ. Further, I find that Complainant does not have a prima facie case with respect to the violation alleged in paragraph VIII(A)(3) of the Complaint.

   Third, Complainant contends that the ALJ's conclusion that APHIS must contact people regarding their violations of the Animal Welfare Act, the Regulations, and the Standards, is in error. (Complainant's Appeal at 22-25.) While I agree with Complainant that such a conclusion would be in error, I do not find that the ALJ concluded that APHIS must notify persons of alleged violations of the Animal Welfare Act, the Regulations, and the Standards.

   Fourth, Complainant contends that the ALJ erred by excluding from evidence a May 9, 1991, "Official Notification and Warning of Violation of Federal Regulations" and a "Warning Notice" addressed to Erma Stramaglia, President, Vope [sic] Vito Inc., dba Four Bears Water Park. (CX 1.) The ALJ sustained Respondent's counsel's objection to the introduction of CX 1 into evidence, as follows:

    *59 [BY MS. DESKINS:]

   Q. Mr. Rippy, could you please tell us your current job title and job duties?

   [BY MR. RIPPY:]

   A. My current job title is Senior Investigator for Regulatory Enforcement in Animal Care. In that capacity, I provide investigative services for several different parts of APHIS, including the animal care part, veterinary services, the biologics division, plant protection and quarantine, I also provide investigative services and help to the State Department of Agriculture.

   Q. Mr. Rippy, as part of your job duties, did you investigate allegations against the Respondent, Four Bears Water Park?

   A. Yes, I have.

   Q. And can you please describe to us, well, I want to focus your attention on violations that started 9/19/91 to the present, so if it gets into things that are before that date, please try to limit your answers to just what would be relevant to this.

   Can you please tell us when you first began your investigation?

   A. The investigation was begun in 1991. It revolved around allegations --

   Q. Well, I don't -- we don't want to get anythings that are beyond the date of the complaint, we'll just leave it at that. If the Respondent's want to get into that, that's -- so it first started at that year.

   As part of this investigation, did you obtain any documents?

   A. I obtained documents from the Agency that had to do with inspections, annual reports by the Respondent, correspondence that was kept in the file by the Agency. I obtained documents from their attending veterinarians concerning the veterinary care of a number of different animals. I've talked to various employees of the Respondent, at times and gotten information from them.

   Q. I'm going to hand you documents which have been marked as CX-1 and CX-2 and ask you to identify them.

   JUDGE KANE: Ms. Deskins, give me the numbers again.

   MS. DESKINS: It's CX-1 and CX-2.

   JUDGE KANE: CXID 1 and 2.

   BY MS. DESKINS:

   Q. Now, you had mentioned that you had gathered some documents. Are these documents that you gathered?

   A. Okay. Yes.

   Q. And please identify what they are.

   A. Okay. CX-1 is official notification and warning of violations of the Federal Regulations, it cites a number specific sections of the CFR that the Respondent had not appropriately responded to as a result of inspections.

CX-2 is an application for license or annual report. This is an annual report 

for license renewal for 1991 which the Respondent has to fill out every year to 

renew their license. It provides information on their business, their business 

location, in the case of an exhibiter, [sic] the number of animals of they 

have. 

   MS. DESKINS: I would then like to move for the admission of CX-1 and 2.

   MS. ALDEN: Well, Your Honor, with respect to CX-1, these purport to relate to matters outside of the date of this complaint, so I'd object to it on that ground. I have no objection to CX-2.

   JUDGE KANE: All right. CX-2 is received.

    *60 (CX-2 received into evidence, 10:00 a.m.)

   JUDGE KANE: Ms. Deskins, you've seemed to take some pain to establish a relevant period to begin only with the date alleged in the complaint.

   MS. DESKINS: Well, the official notification does go to the sanctions. It does show that they were given warnings, that there had been past violations and that --

   JUDGE KANE: Does this letter give warning of perceived violations of the allegations asserted in the complaint?

   MS. DESKINS: Not in the complaint. This pre-dates it. This was a warning to them which does go to sanctions that they did receive notification that there were violations.

   JUDGE KANE: All right. The objection is sustained and CXID-1 will not be received as evidence.

   (CX-1 rejected, 10:02 a.m.)

   MS. DESKINS: I'm going to have to do an offer of proof in CX-1.

   JUDGE KANE: It can accompany the record.

   MS. DESKINS: Well, according to the rules of practice I have to do an offer of proof.

   JUDGE KANE: I understand.

 

Tr. 314-17. 

   The Administrative Procedure Act provides that:

   Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.

5 U.S.C. § 556(d). 

   Section 1.141(h)(1)(iv) of the Rules of Practice provides, as follows:

   § 1.141 Procedure for hearing.

   . . . .

   (h) Evidence -- (1) In general. . . .

   . . . .

   (iv) Evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely, shall be excluded insofar as practicable.

7 C.F.R. § 1.141(h)(1)(iv). 

   While I agree with the ALJ that CX 1 is not relevant to whether Respondent committed the violations alleged in the Complaint, I find that CX 1 is relevant with respect to the sanction to be imposed, and I hereby admit CX 1 into evidence.

   Fifth, Complainant requests that a civil penalty of $40,000 be assessed against Respondent, in addition to the revocation of Respondent's Animal Welfare Act license. (Complainant's Appeal at 25-28.) I agree with Complainant that Respondent should be assessed a civil penalty, in addition to the revocation of Respondent's Animal Welfare Act license. However, based upon the factors which I am required to consider under the Animal Welfare Act when determining the assessment of a civil penalty, (7 U.S.C. § 2149(b)), the Department's sanction policy, and the facts in this case, I am not assessing Respondent the full amount of the civil penalty requested by Complainant.

   Complainant did not appeal the ALJ's decision not to disqualify Respondent from being licensed under the Animal Welfare Act and the Regulations for a period of 10 years, which Complainant had requested in a proposed order filed with the ALJ prior to the issuance of the ALJ's Initial Decision and Order. (Complainant's Amended Proposed Findings of Fact, Conclusions of Law, Order and Brief in Support Thereof at 45.) Consequently, I have not considered the imposition of a disqualification period.

Sanction

    *61 As to the appropriate sanction, the Animal Welfare Act provides:

   § 2149. Violations by licensees

   (a) If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred.

   (b) Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. . . . The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations.

7 U.S.C. § 2149(a), (b). 

   The Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991), aff'd, 991 F.2d 803, 1993 WL 128889 (9th Cir. 1993) (not to be cited as precedent under 9th Circuit Rule 36-3):

   The sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.

   The annual gross revenue of Respondent is approximately $500,000 per year, (Tr. 425); the facility covers 125 acres, (Tr. 425); and by February 1994, Respondent owned approximately 14 animals, (CX 20 at 3). The ALJ determined that Respondent operates a large business, (Initial Decision and Order at 26), and Respondent contends that it is a large business, (Respondent's Appeal at 4). Thus, I conclude that Respondent operated a large facility and the civil penalty requested by Complainant would be appropriate.

   There is no evidence that Respondent deliberately harmed its animals. However, Respondent repeatedly and willfully violated the Animal Welfare Act, the Regulations, and the Standards. Many of the violations are serious and constitute a failure to humanely treat its animals.

    *62 Complainant could have sought $2,500 for each violation. [FN23] In light of the amount that Complainant could have requested and the number of violations and serious nature of many of the violations, the requested sanction of a civil penalty of $40,000, and revocation of Respondent's Animal Welfare Act license, is appropriate.

   Nonetheless, considering the statutory criteria, the Department's sanction policy, the record regarding Respondent's correction of some violations and attempts to correct other violations, the number of violations alleged, which I do not find Complainant has proven by a preponderance of the evidence, and Complainant's recommendation regarding sanction, I believe a civil penalty of $26,000 and a revocation of Respondent's Animal Welfare Act license is appropriate. Finally, I believe that Respondent should be ordered to cease and desist from further violations of the Animal Welfare Act, the Regulations, and the Standards.

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

Order

Paragraph I

   Respondent, Volpe Vito, Inc., d/b/a Four Bears Water Park and Recreation Area, is assessed a civil penalty of $26,000. The penalty shall be paid by certified check or money order, made payable to the Treasurer of the United States, and forwarded within 60 days after service of this Order on Respondent to:

   Sharlene A. Deskins

   United States Department of Agriculture

   Office of the General Counsel

   Room 2014 South Building

   Washington, DC 20250-1417

The certified check or money order should indicate that payment is in reference to AWA Docket No. 94-08.

Paragraph II

   Respondent's license under the Animal Welfare Act is hereby revoked, effective on the 30th day after service of this Order on Respondent.

Paragraph III

   Respondent, its agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act, and in particular, shall cease and desist from:

   1. Failing to maintain complete records showing the acquisition, disposition, and identification of animals;

   2. Failing to maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine;

   3. Failing to provide veterinary care to animals in need of care;

   4. Failing to construct housing facilities for nonhuman primates in a manner and of materials that allow the housing facilities to be readily cleaned and sanitized, or removed or replaced when worn, soiled, or rusted;

   5. Failing to store supplies of food for nonhuman primates in a manner that protects the food from spoilage, contamination, and vermin infestation;

   6. Failing to develop, document, and follow an appropriate plan for environmental enhancement, adequate to promote the psychological well-being of nonhuman primates;

    *63 7. Failing to provide facilities for animals that are structurally sound and maintained in good repair so as to protect animals from injury, to contain animals, and to restrict the entrance of other animals;

   8. Failing to store supplies of food adequately to protect them against deterioration, molding, or contamination by vermin;

   9. Failing to keep water receptacles clean and sanitary;

   10. Failing to provide refrigeration for supplies of perishable food;

   11. Failing to keep the premises (buildings and grounds) clean and in good repair and free of accumulations of trash;

   12. Refusing to allow APHIS to inspect its animals, facilities, and records;

   13. Failing to equip housing facilities for nonhuman primates with disposal facilities and drainage systems constructed and operated so that animal wastes and water are rapidly eliminated and the animals stay dry;

   14. Failing to provide outdoor housing facilities for nonhuman primates which provide sufficient heat to protect nonhuman primates from temperatures falling below 45 £F.;

   15. Failing to provide a suitable method to eliminate excess water from outdoor housing facilities for animals rapidly;

   16.Failing to provide animals with wholesome and uncontaminated food;

   17.Failing to provide animals kept outdoors with adequate shelter from inclement weather;

   18.Failing to provide nonhuman primates with food that is wholesome and free from contamination;

   19.Failing to keep primary enclosures for nonhuman primates clean and spot-cleaned daily;

   20.Failing to keep primary enclosures for nonhuman primates clean and sanitized; and

   21.Handling any animal in a manner that causes trauma, behavioral stress, physical harm, and unnecessary discomfort.

   Paragraph III of this Order shall become effective on the day after service of this Order on Respondent.

FN1 On June 23, 1994, Complainant filed a Motion to Correct Errors in the Complaint, which was not opposed by Respondent. On June 24, 1994, Administrative Law Judge Paul Kane (hereinafter ALJ) issued an Order to Correct Typographical Errors in the Complaint, which amended the date of the violations alleged in paragraphs II(B) and II(C) of the Complaint to read "September 19, 1991."

FN2 The position of Judicial Officer was established pursuant to the Act of April 4, 1940, (7 U.S.C. §§ 450c-450g); Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1490 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994, (7 U.S.C. § 6912(a)(1)).

FN3 The ALJ's conclusions in the Initial Decision and Order (Initial Decision and Order at 27-28) do not include a conclusion that Respondent failed to maintain records on January 2, 1992, as alleged in paragraph III(A) of the Complaint. However, the ALJ found that Respondent violated section 10 of the Animal Welfare Act, (7 U.S.C. § 2140), and section 2.75(b)(1) of the Regulations, (7 C.F.R. § 2.75(b)(1)), as alleged in paragraph III(A) of the Complaint, as follows: Count II(A), Count III(A), Count IV(A), Count V(A), Count VI(A), Count VII(A) . . . While proof of events which allegedly occurred on September 19, 1991 having failed for technical reasons, (Finding #9) the record is sufficiently clear that [R]espondent failed to maintain adequate records on January 2, 1992, (Finding #10), January 16, 1992 (Finding #12A), July 15, 1992 (Finding #13A), and October 20, 1992 (Finding #14A). . . . Initial Decision and Order at 15-16.

FN4 The proponent of an Order has the burden of proof in proceedings conducted under the Administrative Procedure Act, (5 U.S.C. § 556(d)), and the standard of proof by which the burden of persuasion is met is the preponderance of the evidence standard. Herman & MacLean v. Huddleston, 459 U.S. 375, 387- 92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981). The standard of proof in administrative proceedings conducted under the Animal Welfare Act is preponderance of the evidence. In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 109 n.3 (1996); In re Julian J. Toney, 54 Agric. Dec. 923, 971 (1995), aff'd in part, rev'd in part and remanded, No. 96-1317 (8th Cir.1996); In re Otto Berosini, 54 Agric. Dec. 886, 912 (1995); In re Micheal McCall, 52 Agric. Dec. 986, 1010 (1993); In re Ronnie Faircloth, 52 Agric. Dec. 171, 175 (1993), appeal dismissed, 16 F.3d 409, 1994 WL 32793 (4th Cir. 1994), printed in 53 Agric. Dec. 78 (1994); In re Craig Lesser, 52 Agric. Dec. 155, 166 (1993), aff'd, 34 F.3d 1301 (7th Cir. 1994); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066-67 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)); In re Terry Lee Harrison, 51 Agric. Dec. 234, 238 (1992); In re Gus White, III, 49 Agric. Dec. 123, 153 (1990); In re E. Lee Cox, 49 Agric. Dec. 115, 121 (1990), aff'd, 925 F.2d 1102 (8th Cir.), reprinted in 50 Agric. Dec. 14 (1991), cert. denied, 502 U.S. 860 (1991); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1283-84 (1988); In re David Sabo, 47 Agric. Dec. 549, 553 (1988); In re Gentle Jungle, Inc., 45 Agric. Dec. 135, 146-47 (1986); In re JoEtta L. Anesi, 44 Agric. Dec. 1840, 1848 n.2 (1985), appeal dismissed, 786 F.2d 1168 (8th Cir.) (Table), cert. denied, 476 U.S. 1108 (1986).

FN5 The form used to record findings made during inspections conducted in accordance with the Animal Welfare Act was modified in August 1991. The form used by Dr. Dellar to record her findings immediately after her September 19, 1991, January 2, 1992, and January 16, 1992, inspections of Respondent's premises is entitled Inspection of Animal Facilities, Sites or Premises. The form used by Dr. Dellar to record her findings immediately after her July 15, 1992, October 20, 1992, August 10, 1993, September 14, 1993, January 3, 1994, and February 1, 1994, inspections of Respondent's premises is entitled Animal Care Inspection Report.

FN6 See note 5.

FN7 See note 1.

FN8 See note 1.

FN9 Paragraphs II(C)(1), V(B)(1), VI(B)(1), and VIII(A)(5) of the Complaint erroneously cite 9 C.F.R. § 3.80(a)(ix). The correct citation for the violations alleged in paragraphs II(C)(1), V(B)(1), VI(B)(1), and VIII(A)(5) of the Complaint is 9 C.F.R. § 3.80(a)(2)(ix). The failure to cite the correct regulation alleged to be violated is harmless error. Cf. Williams v. United States, 168 U.S. 382, 389 (1897) (a conviction may be sustained on the basis of a statute other than that cited in the indictment); United States v. Lipkis, 770 F.2d 1447, 1452 (9th Cir. 1985) (a conviction may be sustained on the basis of a statute or regulation other than that cited or even where none is cited at all, as long as it is clear that the defendant was not prejudicially misled); In re SSG Boswell, II, 49 Agric. Dec. 210, 212 (1990) (the failure of the Complaint to include a citation to the statute authorizing the civil penalty is harmless error). Further, it is well settled that the formalities of court pleading are not applicable in administrative proceedings. Wallace Corp. v. NLRB, 323 U.S. 248, 253 (1944); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 142-44 (1940). Due process is satisfied when the litigant is reasonably apprised of the issues in controversy. In re Pet Paradise, Inc., supra, 51 Agric. Dec. at 1066; In re Dr. John H. Collins, 46 Agric. Dec. 217, 233 n.8 (1987). It is only necessary that the Complainant in an administrative proceeding reasonably apprise the litigant of the issues in controversy; any such notice is adequate and satisfies due process in the absence of a showing that some party was misled. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350-51 (1938); Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 261-62 (D.C. Cir. 1979); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1161 (5th Cir. 1977); L.G. Balfour Co. v. FTC, 442 F.2d 1, 19 (7th Cir. 1971); Bruhn's Freezer Meats v. USDA, 438 F.2d 1332, 1342 (8th Cir. 1971); Swift & Co. v. United States, 393 F.2d 247, 252-53 (7th Cir. 1968); Cella v. United States, 208 F.2d 783, 788-89 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954); American Newspaper Publishers Ass'n v. NLRB, 193 F.2d 782, 799-800 (7th Cir. 1951), cert. denied sub nom. International Typographical Union v. NLRB, 344 U.S. 816 (1952); Mansfield Journal Co. v. FCC, 180 F.2d 28, 36 (D.C. Cir. 1950); E.B. Muller & Co. v. FTC, 142 F.2d 511, 518-19 (6th Cir. 1944); A.E. Staley Mfg. Co. v. FTC, 135 F.2d 453, 454-55 (7th Cir. 1943); NLRB v. Pacific Gas & Elec. Co., 118 F.2d 780, 788 (9th Cir. 1941); In re Big Bear Farm, Inc., supra, 55 Agric. Dec. at 132; In re James Petersen, 53 Agric. Dec. 80, 92 (1994); In re Pet Paradise, Inc., supra, 51 Agric. Dec. at 1066; In re SSG Boswell, II, supra, 49 Agric. Dec. at 212; In re Floyd Stanley White, 47 Agric. Dec. 229, 264-65 (1988), aff'd per curiam, 865 F.2d 262, 1988 WL 133292 (6th Cir. 1988); In re Sterling Colorado Beef Co., 35 Agric. Dec. 1599, 1601 (1976) (Ruling on Certified Questions), final decision, 39 Agric. Dec. 184 (1980), appeal dismissed, No. 80-1293 (10th Cir. Aug. 11, 1980); In re A.S. Holcomb, 35 Agric. Dec. 1165, 1173-74 (1976). The record does not reveal that Respondent was in any way misled by Complainant's citation of "9 C.F.R. § 3.80(a)(ix)" rather than the correct citation, "9 C.F.R. § 3.80(a)(2)(ix)," and the record reveals that Respondent was reasonably apprised of the issues in controversy.

FN10 See note 1.

FN11 See note 1.

FN12 See note 1.

FN13 See note 1.

FN14 See note 1.

FN15 See note 1.

FN16 See note 1.

FN17 See note 1.

FN18 E.g., In re King Meat Packing Co., 40 Agric. Dec. 552, 553 (1981), aff'd, No. CV 81-6485 (C.D. Cal. Oct. 20, 1982), remanded, No. CV 81-6485 (C.D. Cal. Mar. 25, 1983) (to consider newly discovered evidence), order on remand, 42 Agric. Dec. 726 (1983), aff'd, No. CV 81-6485 (C.D. Cal. Aug. 11, 1983) (original order of Oct. 20, 1982, reinstated nunc pro tunc), aff'd, 742 F.2d 1462 (9th Cir. 1984) (unpublished) (not to be cited as precedent under 9th Circuit Rule 21); compare In re Mr. & Mrs. Richard L. Thornton, 38 Agric. Dec. 1425, 1426-28 (Remand Order), final decision, 38 Agric. Dec. 1539 (1979) (affirming Judge Baker's dismissal of Complaint on remand where she had originally accepted the testimony of Respondent's wife, Respondent's employee, and Respondent's "real good friend" over that of three disinterested USDA veterinarians); In re Unionville Sales Co., 38 Agric. Dec. 1207, 1208-09 (1979) (Remand Order); In re National Beef Packing Co., 36 Agric. Dec. 1722, 1736 (1977), aff'd, 605 F.2d 1167 (10th Cir. 1979).

FN19 See also In re John T. Gray (Decision as to Glen Edward Cole), 55 Agric. Dec. ___, slip op. at 9-10 (Aug. 19, 1996); In re Jim Singleton, 55 Agric. Dec. ___, slip op. at 5 (July 23, 1996); In re William Joseph Vergis, 55 Agric. Dec. 148, 159 (1996); In re Midland Banana & Tomato Co., 54 Agric. Dec. 1239, 1271-72 (1995), appeal docketed, No. 95-3552 (8th Cir. Oct. 16, 1995); In re Kim Bennett, 52 Agric. Dec. 1205, 1206 (1993); In re Christian King, 52 Agric. Dec. 1333, 1342 (1993); In re Tipco, Inc., 50 Agric. Dec. 871, 890-93 (1991), aff'd per curiam, 953 F.2d 639 (4th Cir.), 1992 WL 14586, printed in 51 Agric. Dec. 720 (1992), cert. denied, 506 U.S. 826 (1992); In re Rosia Lee Ennes, supra, 45 Agric. Dec. at 548; In re Gerald F. Upton, supra, 44 Agric. Dec. at 1942 (1985); In re Dane O. Petty, supra, 43 Agric. Dec. at 1421; In re Eldon Stamper, supra, 42 Agric. Dec. at 30; In re Aldovin Dairy, Inc., supra, 42 Agric. Dec. at 1797-98; In re King Meat Co., supra, 40 Agric. Dec. at 1500-01. See generally Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951) (the substantial evidence standard is not modified in any way when the Board and the hearing examiner disagree); JCC, Inc., v. Commodity Futures Trading Comm'n, 63 F.3d 1557, 1566 (11th Cir. 1995) (agencies have authority to make independent credibility determinations without the opportunity to view witnesses firsthand and are not bound by ALJ credibility findings); Dupuis v. Secretary of Health and Human Services, 869 F.2d 622, 623 (1st Cir. 1989) (per curiam) (while considerable deference is owed to credibility findings by the ALJ, the Appeals Council has authority to reject such credibility findings); Pennzoil v. Federal Energy Regulatory Comm'n, 789 F.2d 1128, 1135 (5th Cir. 1986) (the Commission is not strictly bound by the credibility determinations of the ALJ); Retail, Wholesale & Dep't Store Union v. NLRB, 466 F.2d 380, 387 (D.C. Cir. 1972) (the Board has the authority to make credibility determinations in the first instance, and may even disagree with a trial examiners finding on credibility); 3 Kenneth C. Davis, Administrative Law Treatise § 17:16 (1980 & Supp. 1989) (the agency is entirely free to substitute its judgment for that of the hearing officer on all questions, even including questions that depend upon demeanor of the witnesses).

FN20 See note 5.

FN21 The United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Tenth Circuit define the word "willfulness," as that word is used in 5 U.S.C. § 558(c), as an intentional misdeed or such gross neglect of a known duty as to be the equivalent of an intentional misdeed. Capital Produce Co. v. United States, 930 F.2d 1077, 1079 (4th Cir. 1991); Hutto Stockyard, Inc. v. USDA, 903 F.2d 299, 304 (4th Cir. 1990); Capitol Packing Co. v. United States, 350 F.2d 67, 78-79 (10th Cir. 1965). Even under this more stringent definition, many of Respondent's violations would still be found willful.

FN22 I find all of Respondent's violations to be willful (Conclusions of Law, supra, pp. 89-92). Respondent did not address willfulness in connection with any violation alleged in the Complaint except the violations of 7 U.S.C. § 2146 and 9 C.F.R. § 2.126 alleged in paragraphs III(C) and X(A) of the Complaint, (Respondent's Appeal at 5; Respondent's Response at 2). Consequently, I have restricted my comments regarding willfulness to Respondent's violations of 7 U.S.C. § 2146 and 9 C.F.R. § 2.126. Section 19(a) of the Animal Welfare Act, (7 U.S.C. § 2149(a)), authorizes the suspension or revocation of a license of an exhibitor if the exhibitor has violated or is violating any provision of the Animal Welfare Act or any regulation or standard promulgated by the Secretary under the Animal Welfare Act. The only requirement is that at least one of the violations be willful. The existence of additional violations not shown to be willful does nothing to take away the Secretary's authority to suspend or revoke an exhibitor's license. Cox v. United States Dep't of Agric., supra, 925 F.2d at 1105 n.10.

FN23 I found that Complainant proved its case by a preponderance of the evidence with respect to 51 violations alleged in the Complaint. Complainant could have sought and had assessed a maximum civil penalty of $2,500 for each of these 51 violations, for a total civil penalty of $127,500.

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