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United States Department of Agriculture (U.S.D.A.)

In re: DAVID M. ZIMMERMAN
United States
57 Agric. Dec. 1038 (1998)


Case Details
Printable Version
Summary:   Ongoing pattern of violations establishes "history of previous violations" for purposes of 7 USCS § 2149(b), and it is appropriate to view evidence as establishing prior violations in determining appropriate level of civil penalty.

Judge Initial Decision issued by Victor W. Palmer, Chief Administrative Law Judge. Decision and Order issued by William G. Jenson, Judicial Officer. delivered the opinion of the court.


Opinion of the Court:

The Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-2.133) [hereinafter the Regulations]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice], by filing a Complaint on December 9, 1997.

*2 The Complaint alleges that on or about May 13, 1997, through October 14, 1997, David M. Zimmerman [hereinafter Respondent] operated as a dealer, as defined in the Animal Welfare Act and the Regulations, without being licensed, in willful violation of section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1). On December 29, 1997, Respondent filed an Answer denying the material allegations of the Complaint and requesting a hearing.

Chief Administrative Law Judge Victor W. Palmer [hereinafter Chief ALJ] presided over a hearing on August 25, 1998, in Lancaster, Pennsylvania. Brian T. Hill and Frank Martin, Jr., Office of the General Counsel, United States Department of Agriculture [hereinafter USDA], represented Complainant. Eugene R. Campbell of York, Pennsylvania, represented Respondent. During the hearing, Complainant submitted Complainant's Proposed Findings of Fact, Conclusions of Law, Order, and Pre-hearing Brief in Support Thereof and a Proposed Decision and Order. On September 2, 1998, Complainant filed Complainant's Supplemental Brief, and on September 10, 1998, Respondent filed Respondent's Supplemental Brief.

On September 16, 1998, the Chief ALJ issued a Decision and Order [hereinafter Initial Decision and Order] in which the Chief ALJ: (1) concluded that from May 13, 1997, through October 14, 1997, Respondent operated as a dealer, as defined by the Animal Welfare Act and the Regulations, when he was not licensed, in willful violation of section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1); (2) assessed Respondent a civil penalty of $20,000; (3) revoked Respondent's Animal Welfare Act license; and (4) ordered Respondent to cease and desist from violating the Animal Welfare Act and the Regulations. (Initial Decision and Order at 2, 9.)

On October 14, 1998, Respondent appealed to the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in USDA's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). [FN1] On October 23, 1998, Complainant filed Complainant's Memorandum in Opposition to Respondent's Appeal and Complainant's Cross-Appeal. On November 13, 1998, Respondent filed Respondent's Response to Complainant's Cross-Appeal, and on November 16, 1998, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for decision.

Based upon a careful consideration of the record in this proceeding, I agree with the Chief ALJ that Respondent willfully violated section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1), as alleged in the Complaint. Therefore, pursuant to section 1.145(i) of the Rules of Practice (7 C.F.R. § 1.145(i)), I am adopting the Initial Decision and Order as the final Decision and Order, with deletions shown by dots, changes or additions shown by brackets, and trivial changes not specified. Additional conclusions by the Judicial Officer follow the Chief ALJ's discussion.

*3 Complainant's exhibits are referred to as "CX"; Respondent's exhibits are referred to as "RX"; and the hearing transcript is referred to as "Tr."

APPLICABLE STATUTORY PROVISIONS AND REGULATIONS

7 U.S.C.:

TITLE 7--AGRICULTURE

. . . .

CHAPTER 54--TRANSPORTATION, SALE, AND HANDLING OF CERTAIN ANIMALS

§ 2131. Congressional statement of policy

The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order--

(1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment;

(2) to assure the humane treatment of animals during transportation in commerce; and

(3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen.

The Congress further finds that it is essential to regulate, as provided in this chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use.

§ 2132. Definitions

When used in this chapter--

. . . .

(f) The term "dealer" means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include--

(i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or

(ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year[.]

. . . .

§ 2134. Valid license for dealers and exhibitors required

No dealer or exhibitor shall sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked.

. . . .

§ 2149. Violations by licensees

*4 (a) Temporary license suspension; notice and hearing; revocation

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 li- cense, if such violation is determined to have occurred.

(b) Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order

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 vio- lation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals. The Secretary shall give due consideration to the appropriateness of the penalty with 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. §§ 2131, 2132(f), 2134, 2149(a), (b).

9 C.F.R.:

TITLE 9--ANIMALS AND ANIMAL PRODUCTS

CHAPTER I--ANIMAL AND PLANT HEALTH INSPECTION SERVICE,

DEPARTMENT OF AGRICULTURE

SUBCHAPTER A--ANIMAL WELFARE

PART 1--DEFINITION OF TERMS

§ 1.1 Definitions.

For the purposes of this subchapter, unless the context otherwise requires, the following terms shall have the meanings assigned to them in this section. The singular form shall also signify the plural and the masculine form shall also signify the feminine. Words undefined in the following paragraphs shall have the meaning attributed to them in general usage as reflected by definitions in a standard dictionary.

. . . .

Dealer means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet; or any dog for hunting, security, or breeding purposes. This term does not include: A retail pet store, as defined in this section, unless such store sells any animals to a research facility, an exhibitor, or a dealer (wholesale); or any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year.

*5 . . . .

PART 2--REGULATIONS

SUBPART A--LICENSING

§ 2.1 Requirements and application.

(a)(1) Any person operating or desiring to operate as a dealer, exhibitor, or operator of an auction sale, except persons who are exempted from the licensing requirements under paragraph (a)(3) of this section, must have a valid license. A person must be 18 years of age or older to obtain a license. A person seeking a license shall apply on a form which will be furnished by the APHIS, REAC Sector Supervisor in the State in which that person operates or intends to operate. The applicant shall provide the information requested on the application form, including a valid mailing address through which the licensee or applicant can be reached at all times, and a valid premises address where animals, animal facilities, equipment, and records may be inspected for compliance. The applicant shall file the completed application form with the APHIS, REAC Sector Supervisor.

(2) If an applicant for a license or license renewal operates in more than one State, he or she shall apply in the State in which he or she has his or her principal place of business. All premises, facilities, or sites where such person operates or keeps animals shall be indicated on the application form or on a separate sheet attached to it. The completed application form, along with the application fee indicated in paragraph (d) of this section, and the annual license fee indicated in table 1 or 2 of § 2.6 shall be filed with the APHIS, REAC Sector Supervisor.

(3) The following persons are exempt from the licensing requirements under section 2 or section 3 of the Act:

(i) Retail pet stores which sell non- dangerous, pet-type animals, such as dogs, cats, birds, rabbits, hamsters, guinea pigs, gophers, domestic ferrets, chinchilla, rats, and mice, for pets, at retail only: Provided, That, Anyone wholesaling any animals, selling any animals for research or exhibition, or selling any wild, exotic, or nonpet animals retail, must have a license;

(ii) Any person who sells or negotiates the sale or purchase of any animal except wild or exotic animals, dogs, or cats, and who derives no more than $500 gross income from the sale of such animals to a research facility, an exhibitor, a dealer, or a pet store during any calendar year and is not otherwise required to obtain a license;

(iii) Any person who maintains a total of three (3) or fewer breeding female dogs and/or cats and who sells only the offspring of these dogs or cats, which were born and raised on his or her premises, for pets or exhibition, and is not otherwise required to obtain a license;

(iv) Any person who sells fewer than 25 dogs and/or cats per year which were born and raised on his or her premises, for research, teaching, or testing purposes or to any research facility and is not otherwise required to obtain a license. The sale of any dog or cat not born and raised on the premises for research purposes requires a license;

*6 (v) Any person who arranges for transportation or transports animals solely for the purpose of breeding, exhibiting in purebred shows, boarding (not in association with commercial transportation), grooming, or medical treatment, and is not otherwise required to obtain a license;

(vi) Any person who buys, sells, transports, or negotiates the sale, purchase, or transportation of any animals used only for the purposes of food or fiber (including fur);

(vii) Any person who breeds and raises domestic pet animals for direct retail sales to another person for the buyer's own use and who buys no animals for resale and who sells no animals to a research facility, an exhibitor, a dealer, or a pet store (e.g. a purebred dog or cat fancier) and is not otherwise required to have a license; [and]

(viii) Any person who buys animals solely for his or her own use or enjoyment and does not sell or exhibit animals, or is not otherwise required to obtain a license[.]

. . . .

(d) A license will be issued to any applicant, except as provided in §§ 2.10 and 2.11, when the applicant:

(1) Has met the requirements of this section and of §§ 2.2 and 2.3; and

(2) Has paid the application fee of $10 and the annual license fee indicated in § 2.6 to the APHIS, REAC Sector Supervisor and the payment has cleared normal banking procedures.

. . . .

(f) The failure of any person to comply with any provision of the Act, or any of the provisions of the regulations or standards in this subchapter, shall constitute grounds for denial of a license; or for its suspension or revocation by the Secretary, as provided in the Act.

9 C.F.R. §§ 1.1; 2.1(a), (d), (f).

CHIEF ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION AND ORDER (AS MODIFIED)

. . . .

Findings of Fact

1. David M. Zimmerman . . . is an individual whose address is 951 East Main Street, Ephrata, Pennsylvania 17522 (Answer ¶ I(A)).

2. At all times material [to this proceeding], Respondent was operating as a dealer, as defined in the [Animal Welfare] Act and the Regulations. Respondent . . . voluntarily terminated [his Animal Welfare Act license] on May 5, 1997. (CX 1, CX 2, CX 3, CX 5, CX 6, CX 7, CX 8, CX 9, CX 10, CX 13, CX 14, CX 15.)

3. From May 13, 1997, through October 14, 1997, Respondent operated as a dealer, as defined in the [Animal Welfare] Act and the Regulations, when he was no longer licensed, and sold, in commerce, 33 dogs for resale for use as pets (CX 1, CX 2, CX 3, CX 5, CX 6, CX 7, CX 8, CX 9, CX 10). The sale of each dog constitutes a separate violation [of the Animal Welfare Act and the Regulations].

Conclusions of Law

1. The Secretary has jurisdiction in this matter.

2. Respondent was a dealer, as defined in the [Animal Welfare] Act and the Regulations, who, from May 13, 1997, through October 14, 1997, willfully violated section 4 of the [Animal Welfare] Act (7 U.S.C. § 2134) and section 2.1 of the [R]egulations (9 C.F.R. § 2.1) by selling 33 dogs in commerce, for resale for use as pets, without being licensed. The sale of each dog constitutes a separate violation [of the Animal Welfare Act and the Regulations].

*7 3. The appropriate sanctions in this case are the issuance of a cease and desist order, the assessment of a $20,000 civil penalty, and [Respondent's permanent disqualification from obtaining an Animal Welfare Act] license.

Discussion

1. Jurisdiction

[On May 5, 1997,] Respondent . . . voluntarily [terminated] his [Animal Welfare Act dealer's] license. . . . Respondent was notified by USDA on two separate occasions that his [Animal Welfare Act] license was terminated and advised that he could no longer continue to operate as a dealer. (CX 13, CX 14, CX 15.) However, after voluntarily [terminating] his license, [Respondent] continued to engage in activities for which an [Animal Welfare Act] license [is] required. Respondent sold, in commerce, . . . 33 dogs for resale for use as pets (CX 1, CX 2, CX 3, CX 5, CX 6, CX 7, CX 8, CX 9, CX 10).

2. Dealing Without a License

The testimony of USDA investigators William Swartz and James Finn that they obtained records from three different pet stores and a [dealer] licensed [under the Animal Welfare Act] showing that Respondent was the source for dogs, proved that Respondent was selling dogs as a dealer, as defined in the [Animal Welfare] Act and Regulations, after he voluntarily [terminated] his [Animal Welfare Act] license [(Tr. 44-52, 54- 88)]. The pet store and dealer records were required to be kept by state and federal law and were created at the time the animals were acquired by the pet stores and dealer [(Tr. 55, 130-31, 146)]. This evidence is both substantial and probative and is accorded great weight.

Respondent attempted to rebut this evidence by offering the testimony of his friend and business associate, Ronald Kreider, who owns the pet stores to which most of the dogs were sold [(Tr. 134-40)]. Mr. Kreider's testimony must be viewed in the context of his relationship with Respondent and his economic reliance on Respondent. The cross-examination of Mr. Kreider clearly demonstrated that he was not a credible witness.

Mr. Kreider relied on Respondent since 1986 for dogs which he sold in his pet stores (Tr. 119, 134). He also purchased dog food from Respondent on credit [(Tr. 136-39)]. In fact, Mr. Kreider still owes Respondent money . . . [(Tr. 139)]. Mr. Kreider testified that . . . after Respondent stopped selling him dogs, he obtained the dogs needed to operate his pet stores from Respondent's children [(Tr. 134-35)]. He testified that he had to beg Respondent's sons to [sell him dogs] (Tr. 125). It is against this background that Mr. Kreider's credibility and his attempts to refute his business records must be considered.

Mr. Kreider testified that each time Respondent's name appeared in his pet store records, which he is required by the [Commonwealth] of Pennsylvania to accurately keep and maintain, the name was recorded in error (Tr. 140[-]45). During cross- examination, Mr. Kreider's testimony kept changing. At first, [Mr. Kreider] testified that only the entries after Respondent had given up his license were inaccurate (Tr. 119). Then [Mr. Kreider] asserted that all the entries showing Respondent's name could be inaccurate (Tr. 16[0-]61, 165). This testimony is inconsistent with his testimony that he relied on Respondent for dogs while Respondent was licensed. Finally, Mr. Kreider asserted that most, if not all, of the entries in his records were inaccurate. Mr. Kreider's credibility is seriously damaged by the obvious differences between his affidavit (CX 4) and his inconsistent statements at the hearing.

*8 Mr. Kreider testified that the dogs his records show he acquired from Respondent actually came from people who had them at Respondent's kennel for Mr. Kreider to pick up [(Tr. 235-37)]. He testified that they were mixed breeds for which he did not pay [(Tr. 236-37)]. However, [Mr. Kreider's] affidavit states that he gave money to Respondent to pay the owners of these dogs [(CX 4)]. On cross-examination, [Mr. Kreider] was at first evasive in an apparent effort to support Respondent's testimony that Mr. Kreider never gave Respondent money (Tr. [226-]28), but upon being confronted by the statements in his affidavit, he again stated that he gave Respondent money to pay the dogs' owners (Tr. 232-33). Mr. Kreider first testified that when people would bring dogs to Respondent's kennel, the dogs would be in . . . cars or trucks (Tr. 158-59). When questioned why he did not get [the names of the owners of the dogs] for his records, [Mr. Kreider] changed his [testimony] and said that people would leave the dogs at Respondent's kennel in transport enclosures (Tr. 236- 37). Mr. Kreider was unable to explain the entries for purebred dogs in his records that indicate Respondent is the source (Tr. 141-43).

Respondent next introduced the testimony of his son[, Ervin S. Zimmerman,] to explain one of the entries in [CX 3 at 12. Ervin S. Zimmerman] testified that he sold the dog[, an eskipoo,] that the pet store recorded as being sold by his father [(CX 3 at 12; Tr. 217). Ervin S. Zimmerman] is a [dealer licensed under the Animal Welfare Act] and is required to keep records [of the acquisition and disposition of dogs, in accordance with section 2.75(a)(1) of the Regulations] (9 C.F.R. § 2.75(a)(1)). . . . When asked on cross-examination if he had his records to prove that he sold the dog, [Ervin S. Zimmerman] stated that he did not have his records with him [(Tr. 217)]. For these reasons, [Ervin S. Zimmerman's] testimony . . . that he[, rather than Respondent, sold the eskipoo listed on CX 3 at 12,] . . . is rejected as untrustworthy and lacking in credibility.

As a separate defense, Respondent and his brother[, Amos M. Zimmerman,] testified that Mr. Markmann[ [FN2]] and Dr. Binkley[ [FN3]] told them at a meeting in 1993 that they could sell 24 dogs without having to obtain a[n Animal Welfare Act] license [(Tr. 167-68, 173, 201-04)]. Respondent argues that this statement caused confusion and if he did subsequently sell some dogs, . . . he must be construed to have acted in good faith and should not be sanctioned [(Respondent's Supplemental Brief ¶ 5 [FN4])]. However, Mr. Markmann testified that he would not have made that . . . statement and explained that, under 9 C.F.R. § 2.1(a)(3)(iii), only a person who has three or fewer breeding female dogs can sell the offspring of those dogs, which were born on the premises, to the wholesale pet trade without having a license [(Tr. 246- 47)]. Mr. Markmann explained further that he uses the number "24" as a guideline because three breeding females, producing an average of eight puppies a year, would [produce] 24 [puppies (Tr. 248-54)]. Mr. Markmann explained that, under . . . section [2.1(a)(3)(iv) of the Regulations] (9 C.F.R. § 2.1(a)(3)(iv)), a person [without a license] can sell up to 24 dogs, which were born on the premises, for research, teaching, or testing purposes, if [he or she is] not otherwise required to obtain a license [(Tr. 254)]. Dr. Binkley's testimony corroborated Mr. Markmann's testimony [(Tr. 258-63)].

*9 Moreover, Respondent was instructed at the time he voluntarily [terminated his] license that he could not engage in regulated activities without getting a new license [(CX 13, CX 14, CX 15)]. Even assuming, arguendo, that Respondent believed he could sell up to 24 dogs while unlicensed, the record reveals that he sold more than 24 dogs. Respondent also testified that he always had more than three breeding females [(Tr. 256)]. Therefore, he would not be eligible for the exemption in 9 C.F.R. § 2.1(a)(3)(iii), for sales to pet stores. He would also not be eligible for the exemption in 9 C.F.R. § 2.1(a)(3)(iv), for sales to research facilities because he was required to be licensed for his wholesale activities. Both Respondent and his brother[, Amos M. Zimmerman,] testified that they were licensed for years and that they received copies of the Regulations and read them. They admitted that they bore personal responsibility for compliance with the Regulations. [(Tr. 169- 73, 193-94, 203.)] "[I]t is the Respondent's duty to be in compliance with the Animal Welfare Act, and the Regulations and the Standards [set forth in 9 C.F.R. §§ 3.1-.142 [hereinafter the Standards]] at all times. It is not the duty of [Animal and Plant Health Inspection Service] inspectors to instruct licensees as to the details of meeting those requirements." In re John D. Davenport, [57 Agric. Dec. ___, slip op. at 25-26 (May 18, 1998)[, appeal dismissed, No. 98-60463 (5th Cir. Sept. 25, 1998)]. "[I]t is well-settled that individuals are bound by federal statutes and regulations, irrespective of the advice, findings, or compliance determinations of federal employees." See id. at 49-50; See also FCIC v. Merrill, 332 U.S. 380, 382-86 (1947); In re C.C. Baird, 57 Agric. Dec. ___, slip op. at 54-54 (Mar. 20, 1998) [, appeal docketed, No. 98-3296 (8th Cir. Sept. 10, 1998)]; In re Andersen Dairy, Inc., 49 Agric. Dec. 1, 20 (1990); In re Moore Marketing International, Inc., 47 Agric. Dec. 1472, 1477 (1988).

3. The Appropriate Sanctions

The term "willful violation" has been defined, in the context of a regulatory statute, to mean that the violator "(1) intentionally does an act which is prohibited,--irrespective of evil motive or reliance on erroneous advice, or (2) acts with careless disregard of statutory requirements." In re Arab Stock Yard, Inc., 37 Agric. Dec. 29[3, 306] (1978), aff'd [mem.,] 582 F.2d 39 (5th Cir. 1978).

Respondent's behavior over the [5]-month period in question constitutes, at the very least, a careless disregard of the statutory and regulatory requirements and must be construed as willful.

It is therefore appropriate to issue a cease and desist order[, to permanently disqualify Respondent from obtaining an Animal Welfare Act license,] and to [assess a] civil penalt[y,] as provided in section 19(b) of the [Animal Welfare] Act (7 U.S.C. § 2149(b)).

When assessing [a] civil penalt[y], which may be as much as $2,500 [for each] violation, [section 19(b) of] the [Animal Welfare] Act states:

*10 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. [FN5]

[7 U.S.C. § 2149(b).]

With regard to the size of Respondent's business, I find that Respondent has a substantial business. His facility generally houses between 200 and 300 dogs [(Tr. 15-16, 105)].

The gravity of the violations is clearly evident from the record. The failure to obtain a license undercuts the ability of the Animal and Plant Health Inspection Service to monitor and enforce all other provisions of the Animal Welfare Act and the Regulations [and the Standards] . . . and is very serious [(Tr. 104).] Respondent did not display good faith. After voluntarily giving up his license, he continued to engage in activities for which a license [is] required. Respondent's conduct over a period of [5] months reveals consistent disregard for and unwillingness to abide by the requirements of the [Animal Welfare] Act and the [R]egulations.

An ongoing pattern of violations establishes a "history of previous violations" for the purposes of section 19(b) of the [Animal Welfare] Act. It is appropriate to view the evidence . . . as establishing prior violations in determining the appropriate level of the civil penalty. The record in this proceeding establishes that Respondent violated the [Animal Welfare] Act and the [R]egulations . . . 33 [times] (CX 1, CX 2, CX 3, CX 5, CX 6, CX 7, CX 8, CX 9, CX 10). [Moreover, Respondent has a history of violations previous to those that are the subject of the instant proceeding. Specifically, Respondent committed 75 violations of the Animal Welfare Act and the Regulations and the Standards during the period August 3, 1993, through October 31, 1995. In re David M. Zimmerman, 56 Agric. Dec. 433 (1997), aff'd, 156 F.3d 1227] (3d Cir. 1998) (Table). The $20,000 civil penalty requested in Complainant's Proposed Decision and Order is commensurate with the nature and extent of the [33] violations [proven in the instant proceeding] and is consistent with USDA's established sanction policy. [FN6]

This case involves serious violations. The failure to obtain a license undercuts the ability of the Animal and Plant Health Inspections Service to enforce the Animal Welfare Act [and the Regulations and the Standards]. During fiscal year 1997, 4,043 dealers held Animal Welfare Act licenses. See Animal Welfare Report, Fiscal Year 1997, Report of the Secretary of Agriculture to the President of the Senate and the Speaker of the House of Representatives, at 10 (APHIS 41-35-054, May 1998). The Department has a limited number of resources available to it in its enforcement efforts, and therefore relies heavily on the deterrent effect disciplinary proceedings and sanctions have on regulated individuals. In light of the fact that the [Animal Welfare] Act authorizes a maximum penalty of $2,500 per violation, the civil penalty requested by Complainant is not excessive. . . .

*11 . . . .

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Respondent raises 12 issues in Respondent's Appeal Petition. First, Respondent contends that the Chief ALJ erred in finding that Respondent operated as a dealer who sold 33 dogs improperly (Respondent's Appeal Pet. ¶¶ 1, 7).

I disagree with Respondent's contention that the Chief ALJ erred in finding that Respondent operated as a dealer who sold 33 dogs improperly. 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. [FN7] The standard of proof in administrative proceedings conducted under the Animal Welfare Act is preponderance of the evidence. [FN8] The Chief ALJ set forth the basis for his conclusion that Respondent acted as a dealer after Respondent voluntarily terminated his license. I have thoroughly reviewed the record, and I agree with the Chief ALJ that Complainant proved by a preponderance of the evidence that "Respondent operated as a dealer who sold 33 dogs improperly[,]" in violation of section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1).

Second, Respondent contends that the Chief ALJ "erred in accepting the records of pet shop owners as creditable evidence where other evidence refuted their accuracy" (Respondent's Appeal Pet. ¶ 2).

I disagree with Respondent's contention that the Chief ALJ erred in accepting records of pet store owners as creditable evidence. The Chief ALJ found that records from three different pet stores, which indicate that Respondent sold dogs to those pet stores, were required to be kept by state and federal law and were created at the time that the dogs were acquired by the pet stores (Initial Decision and Order at 3). The Chief ALJ thoroughly discussed the evidence introduced by Respondent to rebut the accuracy of these pet store records and found that Respondent's rebuttal evidence was not credible (Initial Decision and Order at 3-5). Instead, the Chief ALJ found the pet store records to be substantial and probative evidence, and the Chief ALJ accorded the pet store records great weight (Initial Decision and Order at 3). I have closely examined the pet store records and Respondent's rebuttal evidence. I find that the Chief ALJ did not err when he found that Respondent's rebuttal evidence was not credible, found that the pet store records are substantial and probative evidence, and gave the pet store records great weight.

Third, Respondent contends that the Chief ALJ "erred in finding the testimony of Ron Kreider not to be creditable when he testified that his records were in error and that he had not bought any dogs from Respondent after he turned in his USDA license" (Respondent's Appeal Pet. ¶ 3).

I disagree with Respondent's contention that the Chief ALJ erred in finding that Mr. Kreider's testimony was not credible. The Judicial Officer is not bound by an administrative law judge'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). [FN9] The Administrative Procedure Act provides that, on appeal from an administrative law judge's initial decision, the agency has all the powers it would have in making an initial decision, as follows:

*12 § 557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record

. . . .

(b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title, an employee qualified to preside at hearings pursuant to section 556 of this title, shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule.

5 U.S.C. § 557(b).

Moreover, the Attorney General's Manual on the Administrative Procedure Act describes the authority of the agency on review of an initial or recommended decision, as follows:

Appeals and review. . . .

In making its decision, whether following an initial or recommended decision, the agency is in no way bound by the decision of its subordinate officer; it retains complete freedom of decision--as though it had heard the evidence itself. This follows from the fact that a recommended decision is advisory in nature. See National Labor Relations Board v. Elkland Leather Co., 114 F.2d 221, 225 (C.C.A. 3, 1940), certiorari denied, 311 U.S. 705.

Attorney General's Manual on the Administrative Procedure Act 83 (1947).

However, the consistent practice of the Judicial Officer is to give great weight to the findings by, and particularly the credibility determinations of, administrative law judges, since they have the opportunity to see and hear witnesses testify. [FN10] The Chief ALJ explained in great detail his reasons for concluding that Mr. Kreider's testimony regarding the inaccuracy of his pet store records is not credible (Initial Decision and Order at 3-5). The record supports the Chief ALJ's credibility determination with respect to Mr. Kreider, and I do not find that the Chief ALJ erred.

Fourth, Respondent contends that the Chief ALJ "erred in failing to consider the conflicting and contradictory testimony of Mr. Markman[n] as to what he told breeders regarding how many dogs they could breed without obtaining a USDA wholesale license" (Respondent's Appeal Pet. ¶ 4). Respondent further contends that the Chief ALJ disregarded "the testimony of Respondent's brother" regarding "statements made to breeders by USDA representatives concerning the number of dogs that could be bred without a license" (Respondent's Appeal Pet. ¶ 6).

As an initial matter, the Animal Welfare Act does not require persons who merely breed dogs to obtain a license, and the record does not indicate that Mr. Markmann or other USDA representatives testified that they discussed with breeders the number of dogs they could breed without an Animal Welfare Act license.

*13 However, Mr. Markmann did testify that he told breeders that, under section 2.1(a)(3)(iii) of the Regulations (9 C.F.R. § 2.1(a)(3)(iii)), a person with three or fewer breeding female dogs can sell the offspring, which were born and raised on the person's premises, for pets without obtaining a license (Tr. 246- 48). Despite the absence, in 9 C.F.R. § 2.1(a)(3)(iii), of any limitation on the number of offspring that a person can sell for pets without a license, Mr. Markmann admitted that he uses the number "24" as a guideline for the number of offspring that a breeder may sell without a license in accordance with 9 C.F.R. § 2.1(a)(3)(iii), because three breeding female dogs generally can produce an average of 24 puppies per year (Tr. 248-54). The information Mr. Markmann admits he provides to breeders regarding 9 C.F.R. § 2.1(a)(3)(iii) may not be entirely clear to all breeders, because some breeders may incorrectly interpret Mr. Markmann's statements to mean that, in addition to the limitation on the number of breeding female dogs that one may maintain, there is a limitation on the number of offspring that may be sold under 9 C.F.R. § 2.1(a)(3)(iii). However, the Chief ALJ did not describe Mr. Markmann's testimony regarding what he tells breeders as "conflicting and contradictory." I have carefully reviewed Mr. Markmann's testimony, and I do not find it "conflicting and contradictory."

Further, Mr. Markmann's statements to dog breeders are not relevant to this proceeding. Respondent admits that, at the time of the hearing, he had approximately 100 breeding female dogs and that at all times material to this proceeding, he maintained more than three breeding female dogs (Tr. 256). Based on Respondent's admission alone, there is no basis for finding that Respondent qualifies for the exemption under section 2.1(a)(3)(iii) of the Regulations (9 C.F.R. § 2.1(a)(3)(iii)) from having to obtain an Animal Welfare Act license.

Moreover, even if Respondent understood Mr. Markmann's statements in breeder meetings to mean that a person could sell up to 24 dogs, without any reference to the number of breeding female dogs maintained by that person, Mr. Markmann's statements would not operate as a defense. First, the evidence establishes that Respondent sold more than 24 dogs. Second, even if Respondent sold less than 25 dogs, Respondent was licensed under the Animal Welfare Act for 25 or 26 years and, therefore, had actual notice of the Animal Welfare Act licensing requirements because each year during that period Respondent received a copy of the Regulations and the Standards and agreed to abide by the Regulations and the Standards (Tr. 193-94). [FN11] Moreover, the Regulations and the Standards are published in the Federal Register; thereby constructively notifying Respondent of the Regulations and the Standards. [FN12]

Respondent relies on the representations of federal employees at Respondent's peril because it is well-settled that individuals are bound by federal statutes and regulations, irrespective of the advice, findings, or compliance determinations of federal employees. [FN13] Therefore, even if Respondent could show that he sold less than 25 dogs and that Mr. Markmann stated that no license was required for the sale of less than 25 dogs for pets, Mr. Markmann's statements would not operate as a defense.

*14 I infer that Respondent contends that the Secretary of Agriculture is estopped from imposing a sanction against Respondent because of Mr. Markmann's statements to Respondent and other dog breeders. The doctrine of equitable estoppel is not, in itself, either a claim or a defense; rather, it is a means of precluding a litigant from asserting an otherwise available claim or defense against a party who has detrimentally relied on that litigant's conduct. [FN14] One key principle of equitable estoppel is that the party claiming the theory must demonstrate reliance on the other party's conduct in such a manner as to change his or her position for the worse. [FN15] Mr. Markmann did nothing to lead Respondent to believe that he could sell 33 dogs for resale as pets without obtaining an Animal Welfare Act license. This record does not support a finding that Mr. Markmann's statements caused Respondent to violate section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1), and I do not find any statements made by Mr. Markmann upon which Respondent could have reasonably relied for his failure to comply with section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1).

Further, even if Respondent had acted to his detriment based on Mr. Markmann's statements, it is well settled that the government may not be estopped on the same terms as any other litigant. [FN16] It is only with great reluctance that the doctrine of estoppel is applied against the government, and its application against the government is especially disfavored when it thwarts enforcement of public laws. [FN17] Equitable estoppel does not generally apply to the government acting in its sovereign capacity, [FN18] as it was doing in this case, [FN19] and estoppel is only available if the government's wrongful conduct threatens to work a serious injustice, if the public's interest would not be unduly damaged by the imposition of estoppel, and, generally, only if there is proof of affirmative misconduct by the government. [FN20] Respondent bears a heavy burden when asserting estoppel against the government, and he has fallen far short of demonstrating that the traditional elements of estoppel are present in this case.

Fifth, Respondent contends that the Chief ALJ "erred in finding that Respondent had a 'substantial' business, consisting of between 200 and 300 dogs" and "disregarded the testimony of Respondent's brother as to the relative size of Respondent's operation" (Respondent's Appeal Pet. ¶¶ 5, 6).

I disagree with Respondent's contention that the Chief ALJ erred in finding that Respondent had a "substantial" business, consisting of between 200 and 300 dogs. Mr. Markmann testified that he had been inspecting Respondent's facility since 1986 and that the last time he inspected the facility, on September 17, 1996, Respondent had 278 dogs (Tr. 15-16). Mr. Swartz testified that he was familiar with Respondent's facility and that prior to the hearing, he had last been to the facility during the summer of 1997. Mr. Swartz characterized Respondent's facility as "a large kennel" (Tr. 53-54). Dr. Goldentyer, Eastern Director for Animal Care, Animal and Plant Health Inspection Service, USDA, testified that Mr. Markmann's inspection reports show that Respondent consistently had in the range of 270 dogs, that Respondent reported gross income from his facility of $39,000 in 1997, and that most of the kennels licensed under the Animal Welfare Act maintain between 30 and 40 dogs (Tr. 105, 108). Dr. Goldentyer also characterized Respondent's facility as "a large dog kennel" (Tr. 105, 108). This evidence regarding the size of Respondent's business supports the Chief ALJ's finding that Respondent "has a substantial business," and I do not find that the Chief ALJ's finding regarding the size of Respondent's facility is error.

*15 Amos M. Zimmerman, Respondent's brother, did testify that he knows of two breeders in the Lancaster County, Pennsylvania, area that maintain around 700 dogs, that he "would think" there are more than 12 facilities in Pennsylvania that maintain more than 250 dogs, and that "out in the midwest they're a lot bigger yet" (Tr. 166, 168). I do not find that Amos M. Zimmerman's testimony regarding the number of dogs in other dog breeding facilities rebuts the evidence that Respondent has a large facility.

Sixth, Respondent contends that the Chief ALJ "erred in considering dogs that were left at Respondent's property, but which were not bred by him" (Respondent's Appeal Pet. ¶ 8).

As an initial matter, the Chief ALJ concluded that Respondent operated as a dealer, as defined in the Animal Welfare Act and the Regulations, without being licensed, in willful violation of section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1), based upon Respondent's sale of 33 dogs in commerce, for resale for use as pets. The identity of the person who bred the dogs which Respondent sold in commerce for resale for use as pets is not relevant to this proceeding.

Mr. Kreider testified that his pet store records, which show that he acquired dogs from Respondent, are inaccurate and that he actually acquired these dogs from people who left the dogs at Respondent's kennel for Mr. Kreider (Tr. 235- 37). The Chief ALJ rejected this evidence and fully discussed his reasons for rejecting this evidence and for his determination that Mr. Kreider was not a credible witness (Initial Decision and Order at 3-5). I have thoroughly reviewed the record, and the record supports the Chief ALJ's rejection of this evidence and the Chief ALJ's finding that Mr. Kreider was not a credible witness with respect to the persons from whom he acquired the dogs identified on his pet store records.

Seventh, Respondent contends that the Chief ALJ "erred in finding that Respondent was acting in bad faith and that any violations were willful" (Respondent's Appeal Pet. ¶ 9).

The Chief ALJ did not find, as Respondent contends, that Respondent acted in bad faith. Instead, the Chief ALJ found that "Respondent did not display good faith" and cited, as support for this finding, Respondent's 5-month disregard for and unwillingness to abide by the requirements of the Animal Welfare Act and the Regulations (Initial Decision and Order at 7). The record supports the Chief ALJ's finding that Respondent did not display good faith.

I disagree with Respondent's contention that the Chief ALJ erred by concluding that Respondent's violations of section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1) 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. [FN21] The Chief ALJ found that Respondent's sale of dogs to pet stores and a dealer without a license over a 5-month period "constituted, at the very least, a careless disregard of the statutory and regulatory requirements and must be construed as wilful" (Initial Decision and Order at 7). I agree with the Chief ALJ.

*16 Eighth, Respondent contends that "[t]he amount of the civil penalty is excessive" (Respondent's Appeal Pet. ¶ 10).

I disagree with Respondent's contention that the civil penalty assessed by the Chief ALJ is excessive. This case involves extremely serious willful violations of the Animal Welfare Act and the Regulations by a Respondent who has not displayed good faith. Moreover, Respondent has a history of previous violations of the Animal Welfare Act, the Regulations, and the Standards. [FN22]

A dealer or exhibitor who fails to obtain an Animal Welfare Act license in violation of the Animal Welfare Act and the Regulations thwarts the Secretary of Agriculture's ability to monitor the dealer's or exhibitor's compliance with the Animal Welfare Act, the Regulations, and the Standards and severely undermines the Secretary of Agriculture's ability to enforce the Animal Welfare Act, the Regulations, and the Standards. Therefore, in order to deter future violations of this gravity, a substantial civil penalty is warranted.

The Animal Welfare Act authorizes the assessment of a maximum civil penalty of $2,500 per violation per day (7 U.S.C. § 2149(b)). Respondent committed 33 violations of the Animal Welfare Act and the Regulations. The Chief ALJ could have assessed Respondent a maximum civil penalty of $82,500. Further, the civil penalty assessed by the Chief ALJ was recommended by the administrative officials charged with the responsibility for achieving the congressional purpose of the Animal Welfare Act (Tr. 104-05; Complainant's Proposed Decision and Order at 8), and is in accord with USDA's sanction policy which 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), as follows:

[T]he 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.

Moreover, the $20,000 civil penalty assessed by the Chief ALJ against Respondent, is well within the range of sanctions in these kinds of cases. USDA consistently imposes significant sanctions for violations of the Animal Welfare Act and the Regulations and the Standards. [FN23]

The purpose of an administrative sanction is deterrence of future violations by the violator and other potential violators. The $20,000 civil penalty assessed by the Chief ALJ is necessary to deter Respondent and other potential violators from committing the same or similar violations.

Ninth, Respondent contends that the Chief ALJ "erred in disregarding the testimony of Respondent's son regarding the poodle, that the puppy in question was bred by David Zimmerman, Jr." (Respondent's Appeal Pet. ¶ 11).

*17 I disagree with Respondent's contention that the Chief ALJ erred by disregarding testimony that a puppy was bred by David Zimmerman, Jr. The Chief ALJ concluded that Respondent operated as a dealer, as defined in the Animal Welfare Act and the Regulations, without being licensed, in willful violation of section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1), based upon Respondent's sale of 33 dogs in commerce, for resale for use as pets. The identity of the person who bred a poodle, which Respondent sold in commerce for resale for use as a pet, is not relevant to this proceeding.

Tenth, Respondent contends that the Chief ALJ erred in disregarding the testimony of Respondent that he did not raise golden retrievers or samoyeds (Respondent's Appeal Pet. ¶ 12).

I disagree with Respondent's contention that the Chief ALJ erred by disregarding testimony that Respondent did not raise golden retrievers or samoyeds. The Chief ALJ concluded that Respondent operated as a dealer, as defined in the Animal Welfare Act and the Regulations, without being licensed, in willful violation of section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1), based upon Respondent's sale of 33 dogs in commerce, for resale for use as pets. The identity of the person who raised the golden retrievers and samoyeds that Respondent sold in commerce for resale for use as pets is not relevant to this proceeding.

Eleventh, Respondent contends that the Chief ALJ "placed an impossible burden on Respondent to bring pet store owners from distant areas to refute the records that were introduced" (Respondent's Appeal Pet. ¶ 13).

I disagree with Respondent's contention that the Chief ALJ placed an impossible burden on Respondent. The Chief ALJ did not require Respondent to call any witnesses.

Twelfth, Respondent contends that "[t]he pet store records were hearsay and were not properly authenticated" (Respondent's Appeal Pet. ¶ 14).

I do not find that the Chief ALJ erred when he admitted pet store records into evidence. Neither the Administrative Procedure Act nor the Rules of Practice prohibit the admission of hearsay evidence. The Administrative Procedure Act provides, with respect to the admission of evidence, that:

§ 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision

. . . .

(d) . . . 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.

*18 7 C.F.R. § 1.141(h)(1)(iv).

Further, courts have consistently held that hearsay evidence is admissible in proceedings conducted under the Administrative Procedure Act and may be relied upon. [FN24] Responsible hearsay has long been admitted in the Department's administrative proceedings. [FN25]

Complainant contends that the Chief ALJ "erred in finding that the Animal Welfare Act does not provide authority to permanently disqualify a respondent from obtaining a license" (Complainant's Memorandum in Opposition to Respondent's Appeal and Complainant's Cross-Appeal ¶ II(A)). Respondent responds that if he is permanently barred from obtaining a license, he has no incentive to pay the civil penalty, and Complainant has not offered any authority to support the position that disqualification is authorized by the Animal Welfare Act (Respondent's Response to Complainant's Cross-Appeal at 1).

The Chief ALJ states that "there is no provision for [the sanction of disqualification] in the [Animal Welfare] Act"; therefore, even though Respondent voluntarily terminated his license, "it is appropriate to now revoke [Respondent's license] in order to reinforce the fact that a new license should not be issued to Respondent in the future" (Initial Decision and Order at 8).

I disagree with the Chief ALJ's holding that there is no authority under the Animal Welfare Act to disqualify a person from obtaining an Animal Welfare Act license. While there is no provision in the Animal Welfare Act that explicitly states that the Secretary of Agriculture is authorized to disqualify a person from becoming licensed, section 21 of the Animal Welfare Act (7 U.S.C. § 2151) [FN26] authorizes the issuance of an order disqualifying an unlicensed violator from becoming licensed because of violations of the Animal Welfare Act, the Regulations, or the Standards, [FN27] and there are numerous instances in which the Secretary of Agriculture has exercised the authority to disqualify unlicensed violators from becoming licensed under the Animal Welfare Act. [FN28]

Further, I find that the Chief ALJ erred by revoking an Animal Welfare Act license, which the Chief ALJ knew Respondent did not have at the time the Chief ALJ imposed the sanction of revocation. Under section 19(a) of the Animal Welfare Act (7 U.S.C. § 2149(a)), the Secretary of Agriculture may revoke the license of "any person licensed as a dealer, exhibitor, or operator of an auction sale" if the person "has violated or is violating" the Animal Welfare Act, the Regulations, or the Standards (emphasis added). I read section 19(a) of the Animal Welfare Act (7 U.S.C. § 2149(a)) to mean that the Secretary of Agriculture may revoke the license of a violator who holds a license at the time the Secretary issues an order revoking the license. However, the Secretary of Agriculture cannot revoke the license of a violator who does not hold a license, even if that violator was a licensee under the Animal Welfare Act at the time he or she violated the Animal Welfare Act, the Regulations, or the Standards. My reading of section 19(a) of the Animal Welfare Act (7 U.S.C. § 2149(a)) appears to be in accord with the common meaning of the word revoke which, in connection with a license, connotes "recalling" or "taking back" a license that is valid until it is revoked. [FN29] If a violator terminates his or her license prior to the issuance of an order, as occurred in this proceeding, the violator has no license that may be revoked (recalled or taken back) by the Secretary of Agriculture. [FN30]

*19 Thus, while the Secretary of Agriculture may revoke a current licensee's Animal Welfare Act license for violations which occurred while that person was not licensed, the Secretary of Agriculture cannot revoke a person's Animal Welfare Act license if the person is not licensed at the time the order revoking the license is issued. The appropriate sanction to be imposed against a person whose license would be revoked for violations of the Animal Welfare Act, the Regulations, or the Standards, but for the violator's being unlicensed, is disqualification from becoming licensed.

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

Order

1. Respondent, his agents and employees, successors and assigns, directly or indirectly through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations issued under the Animal Welfare Act, and in particular, shall cease and desist from engaging in any activity for which a license is required under the Animal Welfare Act and the Regulations issued under the Animal Welfare Act, without being licensed, as required. The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondent.

2. Respondent is assessed a civil penalty of $20,000, which shall be paid by certified check or money order made payable to the Treasurer of the United States, and forwarded to:

Frank Martin, Jr.

U.S. Department of Agriculture

Office of the General Counsel

1400 Independence Ave., SW

Room 2014 South Building

Washington, DC 20250-1417

The certified check or money order shall be forwarded to, and received by, Frank Martin, Jr., within 65 days after service of this Order on Respondent. The certified check or money order should indicate that payment is in reference to AWA Docket No. 98-0005.

3. Respondent is permanently disqualified from obtaining a license under the Animal Welfare Act. The disqualification provisions of this Order shall become effective upon service of this Order on Respondent.

 

FN1. The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g); section 4(a) of Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219, 3221 (1953), reprinted in 5 U.S.C. app. § 4(a) at 1491 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. § 6912(a)(1)). [

FN2. Mr. Robert Gerard Markmann is an animal care inspector employed by USDA (Tr. 8).] [

FN3. Dr. Francis Miava Binkley is a supervisory animal care specialist (Tr. 257-58). I infer from Dr. Binkley's testimony that she is employed in this capacity by USDA.] [

FN4. Respondent's Supplemental Brief contains two paragraphs identified as "5." The reference here is to the paragraph identified as "5. GOOD FAITH".]

FN5. It may be noted that the Judicial Officer has pointed out that consideration need not be given under the Animal Welfare Act to a respondent's ability to pay [the] civil penalt[y]. In re Jerome A. Johnson, [51 Agric. Dec. 209, 216 (1992)].

FN6. The Department's sanction policy states that "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." See In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 4[97] (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)].

FN7. Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981).

FN8. In re Richard Lawson, 57 Agric. Dec. ___, slip op. at 45-46 (Oct. 15, 1998); In re Marilyn Shepherd, 57 Agric. Dec. ___, slip op. at 38 (June 26, 1998); In re John D. Davenport, 57 Agric. Dec. ___, slip op. at 44 (May 18, 1998), appeal dismissed, No. 98-60463 (5th Cir. Sept. 25, 1998); In re C.C. Baird, 57 Agric. Dec. ____, slip op. at 27 (Mar. 20, 1998), appeal docketed, No. 98-3296 (8th Cir. Sept. 10, 1998); In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 18 n.3 (Jan. 13, 1998), appeal docketed, No. 98-70807 (9th Cir. July 10, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1455-56 n.7 (1997), appeal docketed, No. 98-3100 (3d Cir. Feb. 19, 1998); In re Fred Hodgins, 56 Agric. Dec. 1242, 1246-47 n.*** (1997), appeal docketed, No. 97- 3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 461 (1997), aff'd, 156 F.3d 1227 (3d Cir. 1998) (Table); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 169 n.4 (1997), appeal docketed, No. 97- 3603 (6th Cir. June 13, 1997); 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, 101 F.3d 1236 (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).

FN9. See also In re IBP, inc., 57 Agric. Dec. ___, slip op. at 48 (July 31, 1998), appeal docketed, No. 98-3104 (8th Cir. Aug. 12, 1998); In re JSG Trading Corp. (Decision as to JSG Trading Corp., Gloria and Tony Enterprises, d/b/a G&T Enterprises, and Anthony Gentile), 57 Agric. Dec. ___, slip op. at 67 (Mar. 2, 1998), appeal docketed, No. 98-1342 (D.C. Cir. July 24, 1998); In re Fred Hodgins, 56 Agric. Dec. 1242, 1364-65 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Saulsbury Enterprises, 56 Agric. Dec. 82, 90 (1997) (Order Denying Pet. for Recons.); In re Garelick Farms, Inc., 56 Agric. Dec. 37, 78-79 (1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 245 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re John T. Gray (Decision as to Glen Edward Cole), 55 Agric. Dec. 853, 860-61 (1996); In re Jim Singleton, 55 Agric. Dec. 848, 852 (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), aff'd, 104 F.3d 139 (8th Cir. 1997), cert. denied sub nom. Heimann v. Department of Agric., 118 S. Ct. 372 (1997); 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, 45 Agric. Dec. 540, 548 (1986); 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 Eldon Stamper, 42 Agric. Dec. 20, 30 (1983), aff'd, 722 F.2d 1483 (9th Cir. 1984), reprinted in 51 Agric. Dec. 302 (1992); 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 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). See generally Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951) (stating that 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) (stating that agencies have authority to make independent credibility determinations without the opportunity to view witnesses firsthand and are not bound by an administrative law judge's credibility findings); Dupuis v. Secretary of Health and Human Services, 869 F.2d 622, 623 (1st Cir. 1989) (per curiam) (stating that while considerable deference is owed to credibility findings by an administrative law judge, 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) (stating that the Commission is not strictly bound by the credibility determinations of an administrative law judge); Retail, Wholesale & Dep't Store Union v. NLRB, 466 F.2d 380, 387 (D.C. Cir. 1972) (stating that the Board has the authority to make credibility determinations in the first instance and may even disagree with a trial examiner's finding on credibility); 3 Kenneth C. Davis, Administrative Law Treatise § 17:16 (1980 & Supp. 1989) (stating that 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).

FN10. In re IBP, inc., 57 Agric. Dec. ___, slip op. at 47 (July 31, 1998), appeal docketed, No. 98-3104 (8th Cir. Aug. 12, 1998); In re JSG Trading Corp. (Decision as to JSG Trading Corp., Gloria and Tony Enterprises, d/b/a G&T Enterprises, and Anthony Gentile), 57 Agric. Dec. ___, slip op. at 68-69 (Mar. 2, 1998), appeal docketed, No. 98-1342 (D.C. Cir. July 24, 1998); In re Jerry Goetz, 56 Agric. Dec. 1470, 1510 (1997), appeal docketed, No. 98-1155- JTM (D. Kan. 1998); In re Fred Hodgins, 56 Agric. Dec. 1242, 1364-65 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Saulsbury Enterprises, 56 Agric. Dec. 82, 89 (1997) (Order Denying Pet. for Recons.); In re Andershock Fruitland, Inc., 55 Agric. Dec. 1204, 1229 (1996), aff'd, 151 F.3d 735 (7th Cir. 1998); In re Floyd Stanley White, 47 Agric. Dec. 229, 279 (1988), aff'd per curiam, 865 F.2d 262, 1988 WL 133292 (6th Cir. 1988); In re King Meat Packing Co., 40 Agric. Dec. 552, 553 (1981); In re Mr. & Mrs. Richard L. Thornton, 38 Agric. Dec. 1425, 1426 (1979) (Remand Order); In re Steve Beech, 37 Agric. Dec. 869, 871-72 (1978); 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); In re Edward Whaley, 35 Agric. Dec. 1519, 1521 (1976); In re Dr. Joe Davis, 35 Agric. Dec. 538, 539 (1976); In re American Commodity Brokers, Inc., 32 Agric. Dec. 1765, 1772 (1973); In re Cardwell Dishmon, 31 Agric. Dec. 1002, 1004 (1972); In re Sy B. Gaiber & Co., 31 Agric. Dec. 474, 497-98 (1972); In re Louis Romoff, 31 Agric. Dec. 158, 172 (1972).

FN11. Section 2.1(a)(3)(iii) of the Regulations (9 C.F.R. § 2.1(a)(3)(iii)) became effective on October 30, 1989, and has not been amended since that time (54 Fed. Reg. 36,123 (1989)).

FN12. 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).

FN13. See FCIC v. Merrill, 332 U.S. 380, 382-86 (1947); In re John D. Davenport, 57 Agric. Dec. ___, slip op. at 49-50 (May 18, 1998), appeal dismissed, No. 98-60463 (5th Cir. Sept. 25, 1998); In re C.C. Baird, 57 Agric. Dec. ___, slip op. at 54-55 (Mar. 20, 1998), appeal docketed, No. 98- 3296 (8th Cir. Sept. 10, 1998); In re Andersen Dairy, Inc., 49 Agric. Dec. 1, 20 (1990); In re Moore Marketing International, Inc., 47 Agric. Dec. 1472, 1477 (1988).

FN14. Kennedy v. United States, 965 F.2d 413, 417 (7th Cir. 1992); Olsen v. United States, 952 F.2d 236, 241 (8th Cir. 1991); ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988); FDIC v. Roldan Fonseca, 795 F.2d 1102, 1108 (1st Cir. 1986).

FN15. Heckler v. Community Health Servs., 467 U.S. 51, 59 (1984); Carrillo v. United States, 5 F.3d 1302, 1306 (9th Cir. 1993); Kennedy v. United States, 965 F.2d 413, 418 (7th Cir. 1992).

FN16. Heckler v. Community Health Servs., 467 U.S. 51, 60 (1984); United States Immigration & Naturalization Serv. v. Hibi, 414 U.S. 5, 8 (1973) (per curiam); FCIC v. Merrill, 332 U.S. 380, 383 (1947).

FN17. Muck v. United States, 3 F.3d 1378, 1382 (10th Cir. 1993); Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984); United States v. Browning, 630 F.2d 694, 702 (10th Cir. 1980), cert. denied, 451 U.S. 988 (1981).

FN18. United States v. Killough, 848 F.2d 1523, 1526 (11th Cir. 1988); Johnson v. Williford, 682 F.2d 868, 871 (9th Cir. 1982).

FN19. See In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 130 (1996) (holding that the government acts in its sovereign capacity in disciplinary proceedings under the Animal Welfare Act). Cf. In re Dean Byard (Decision as to Dean Byard), 56 Agric. Dec. 1543, 1561 (1997) (holding that the government acts in its sovereign capacity in disciplinary proceedings under the Horse Protection Act of 1970, as amended); In re Norwich Beef Co., 38 Agric. Dec. 380, 396- 98 (1979) (holding that the government acts in its sovereign capacity in disciplinary proceedings under the Federal Meat Inspection Act), aff'd, No. H-79-210 (D. Conn. Feb. 6, 1981), appeal dismissed, No. 81-6080 (2d Cir. Jan. 22, 1982); In re M. & H. Produce Co., 34 Agric. Dec. 700, 760-61 (1975) (holding that the government acts in its sovereign capacity in disciplinary proceedings under the Perishable Agricultural Commodities Act, as amended), aff'd, 549 F.2d 830 (D.C. Cir.) (unpublished), cert. denied, 434 U.S. 920 (1977).

FN20. City of New York v. Shalala, 34 F.3d 1161, 1168 (2d Cir. 1994); United States v. Vanhorn, 20 F.3d 104, 112 n.19 (4th Cir. 1994); United States v. Guy, 978 F.2d 934, 937 (6th Cir. 1992); Gestuvo v. District Director of INS, 337 F. Supp. 1093, 1099 (C.D. Cal. 1971).

FN21. Toney v. Glickman, 101 F.3d 1236, 1241 (8th Cir. 1996); Cox v. United States Dep't of Agric., 925 F.2d 1102, 1105 (8th Cir.), cert. denied, 502 U.S. 860 (1991); Finer Foods Sales Co. v. Block, 708 F.2d 774, 777- 78 (D.C. Cir. 1983); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 997 (1981); George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.), cert. denied, 419 U.S. 830 (1974); Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); Eastern Produce Co. v. Benson, 278 F.2d 606, 609 (3d Cir. 1960); In re Richard Lawson, 57 Agric. Dec. ___, slip op. at 71-72 (Oct. 15, 1998); In re Marilyn Shepherd, 57 Agric. Dec. ___, slip op. at 58-59 (June 26, 1998); In re John D. Davenport, 57 Agric. Dec. ___, slip op. at 39 (May 18, 1998), appeal dismissed, No. 98-60463 (5th Cir. Sept. 10, 1998); In re C.C. Baird, 57 Agric. Dec.___, slip op. at 48 (Mar. 20, 1998), appeal docketed, No. 98-3296 (8th Cir. Sept. 10, 1998); In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 31 (Jan. 13, 1998), appeal docketed, No. 98- 70807 (9th Cir. July 10, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1454 n.4 (1997), appeal docketed, No. 98-3100 (3d Cir. Feb. 19, 1998); In re Fred Hodgins, 56 Agric. Dec. 1242, 1352 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 476 (1997), aff'd, 156 F.3d 1227 (3d Cir. 1998) (Table); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 255-56 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 138 (1996); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1284 (1988); In re David Sabo, 47 Agric. Dec. 549, 554 (1988). 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."')

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. United States Dep't of Agric., 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, Respondent's violations would still be found willful.

FN22. The ongoing pattern of violations of the Animal Welfare Act and the Regulations between May 13, 1997, and October 14, 1997, evidenced by the record in this proceeding, establishes a history of previous violations for the purposes of section 19(b) of the Animal Welfare Act (7 U.S.C. § 2149(b)). Moreover, Respondent committed 75 violations of the Animal Welfare Act, the Regulations, and the Standards between August 3, 1993, and October 31, 1995. In re David M. Zimmerman, 56 Agric. Dec. 433 (1997), aff'd, 156 F.3d 1227 (3d Cir. 1998) (Table).

FN23. See, e.g., In re Richard Lawson, 57 Agric. Dec. ___ (Oct. 15, 1998) (imposing a $13,500 civil penalty and a 2-year disqualification from obtaining a license for 16 violations of the Animal Welfare Act and the Regulations and Standards); In re Marilyn Shepherd, 57 Agric. Dec. ___ (June 26, 1998) (imposing a $2,000 civil penalty and a 7-day suspension for 20 violations of the Animal Welfare Act and the Regulations and Standards); In re John D. Davenport, 57 Agric. Dec. ___ (May 18, 1998) (imposing a $200,000 civil penalty, permanent revocation of respondent's license, and permanent disqualification from obtaining a license for 103 violations of the Animal Welfare Act and the Regulations and Standards), appeal dismissed, No. 98- 60463 (5th Cir. Sept. 25, 1998); In re C.C. Baird, 57 Agric. Dec.___ (Mar. 20, 1998) (imposing a $9,250 civil penalty and a 14-day suspension for 23 violations of the Animal Welfare Act, the Regulations, and the Standards), appeal docketed, No. 98-3296 (8th Cir. Sept. 10, 1998); In re Peter A. Lang, 57 Agric. Dec. ___ (Jan. 13, 1998) (imposing a $1,500 civil penalty for one violation of the Regulations), appeal docketed, No. 98-70807 (9th Cir. July 10, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419 (1997) (imposing a $7,500 civil penalty and a 40-day suspension for 15 violations of the Animal Welfare Act and the Regulations and Standards), appeal docketed, No. 98- 3100 (3d Cir. Feb. 19, 1998); In re James J. Everhart, 56 Agric. Dec. 1400 (1997) (imposing a $3,000 civil penalty and permanent disqualification from obtaining a license for three violations of the Animal Welfare Act and the Regulations); In re Dora Hampton, 56 Agric. Dec. 1634 (1997) (imposing a $10,000 civil penalty and permanent disqualification from obtaining a license for 13 violations of the Regulations and the Standards) (Modified Order); In re Fred Hodgins, 56 Agric. Dec. 1242 (1997) (imposing a $13,500 civil penalty and a 14-day license suspension for 54 violations of the Animal Welfare Act, the Regulations, and the Standards), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Julian J. Toney, 56 Agric. Dec. 1235 (1997) (imposing a $175,000 civil penalty and license revocation for numerous violations of the Animal Welfare Act, the Regulations, and the Standards) (Decision and Order on Remand); In re David M. Zimmerman, 56 Agric. Dec. 433 (1997) (imposing a $51,250 civil penalty and a 60-day license suspension for 75 violations of the Animal Welfare Act, the Regulations, and the Standards), aff'd, 156 F.3d 1227 (3d Cir. 1998) (Table); In re Patrick D. Hoctor, 56 Agric. Dec. 416 (1997) (imposing a $1,000 civil penalty and a 15-day license suspension for eight violations of the Animal Welfare Act, the Regulations, and the Standards) (Order Lifting Stay Order and Decision and Order); In re John Walker, 56 Agric. Dec. 350 (1997) (imposing a $5,000 civil penalty and a 30-day license suspension for 10 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Mary Meyers, 56 Agric. Dec. 322 (1997) (imposing a $26,000 civil penalty and a 10-year disqualification from becoming licensed under the Animal Welfare Act for 32 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Volpe Vito, Inc., 56 Agric. Dec. 166 (1997) (imposing a $26,000 civil penalty and a revocation of license for 51 violations of the Animal Welfare Act, the Regulations, and the Standards), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re William Joseph Vergis, 55 Agric. Dec. 148 (1996) (imposing a $2,500 civil penalty and a 1-year disqualification from becoming licensed under the Animal Welfare Act for one violation of the Regulations and one violation of the cease and desist provisions of a Consent Decision); In re Big Bear Farm, Inc., 55 Agric. Dec. 107 (1996) (imposing a $6,750 civil penalty and 45-day license suspension for 36 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Ronald D. DeBruin, 54 Agric. Dec. 876 (1995) (imposing a $5,000 civil penalty and 30-day license suspension for 21 violations of the Animal Welfare Act, the Regulations, and the Standards); In re Tuffy Truesdell, 53 Agric. Dec. 1101 (1994) (imposing a $2,000 civil penalty and 60-day license suspension for numerous violations on four different dates over a 13-month period); In re Gentle Jungle, Inc., 45 Agric. Dec. 135 (1986) (imposing a $15,300 civil penalty and license revocation for numerous violations of the Regulations and the Standards); In re JoEtta L. Anesi, 44 Agric. Dec. 1840 (1985) (imposing a $1,000 civil penalty and license revocation for 10 violations of the Regulations and a previously issued cease and desist order), appeal dismissed, 786 F.2d 1168 (8th Cir.)(Table), cert. denied, 476 U.S. 1108 (1986).

FN24. See, e.g., Richardson v. Perales, 402 U.S. 389, 409-10 (1971) (stating that even though inadmissible under the rules of evidence applicable to court procedure, hearsay evidence is admissible under the Administrative Procedure Act); Bennett v. National Transp. Safety Bd., 66 F.3d 1130, 1137 (10th Cir. 1995) (stating that the Administrative Procedure Act (5 U.S.C. § 556(d)) renders admissible any oral or documentary evidence except irrelevant, immaterial, or unduly repetitious evidence; thus, hearsay evidence is not inadmissible per se); Crawford v. United States Dep't of Agric., 50 F.3d 46, 49 (D.C. Cir.) (stating that administrative agencies are not barred from reliance on hearsay evidence, which need only bear satisfactory indicia of reliability), cert. denied, 516 U.S. 824 (1995); Gray v. United States Dep't of Agric., 39 F.3d 670, 676 (6th Cir. 1994) (holding that documentary evidence which is reliable and probative is admissible in an administrative proceeding, even though it is hearsay); Woolsey v. NTSB, 993 F.2d 516, 520 n.11 (5th Cir. 1993) (stating that the only limit on hearsay evidence in an administrative context is that it bear satisfactory indicia of reliability; it is not the hearsay nature per se of the proffered evidence that is significant, it is the probative value, reliability, and fairness of its use that are determinative), cert. denied, 511 U.S. 1081 (1994); Keller v. Sullivan, 928 F.2d 227, 230 (7th Cir. 1991) (stating that hearsay statements are admissible in administrative hearings, as long as they are relevant and material); Bustos-Torres v. INS, 898 F.2d 1053, 1056 (5th Cir. 1990) (stating that hearsay evidence is admissible in administrative proceedings, so long as the admission of evidence meets the test of fundamental fairness and probity); Myers v. Secretary of Health and Human Services, 893 F.2d 840, 846 (6th Cir. 1990) (stating that hearsay evidence is admissible in an administrative proceeding, provided it is relevant and material); Evosevich v. Consolidation Coal Co., 789 F.2d 1021, 1025 (3d Cir. 1986) (stating that hearsay evidence is freely admissible in administrative proceedings); Sears v. Department of the Navy, 680 F.2d 863, 866 (1st Cir. 1982) (stating that it is well established that hearsay evidence is admissible in administrative proceedings); Hoska v. United States Dep't of the Army, 677 F.2d 131, 138- 39 (D.C. Cir. 1982) (stating that hearsay evidence is admissible in administrative proceedings and depending on reliability, can be substantial evidence).

FN25. In re Fred Hodgins, 56 Agric. Dec. 1242, 1355 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Saulsbury Enterprises, 56 Agric. Dec. 82, 86 (1997) (Order Denying Pet. for Recons.); In re John T. Gray (Decision as to Glen Edward Cole) 55 Agric. Dec. 853, 868 (1996); In re Mike Thomas, 55 Agric. Dec. 800, 821 (1996); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 136 (1996); In re Jim Fobber, 55 Agric. Dec. 60, 69 (1996); In re Richard Marion, D.V.M., 53 Agric. Dec. 1437, 1463 (1994); In re Dane O. Petty, 43 Agric. Dec. 1406, 1466 (1984), aff'd, No. 3-84- 2200-R (N.D. Tex. June 5, 1986); In re De Graaf Dairies, Inc., 41 Agric. Dec. 388, 427 n.39 (1982), aff'd, No. 82-1157 (D.N.J. Jan. 24, 1983), aff'd mem., 725 F.2d 667 (3d Cir. 1983); In re Richard L. Thornton, 38 Agric. Dec. 1425, 1435 (Remand Order), final decision, 38 Agric. Dec. 1539 (1979); In re Maine Potato Growers, Inc., 34 Agric. Dec. 773, 791-92 (1975), aff'd, 540 F.2d 518 (1st Cir. 1976); In re Marvin Tragash Co., 33 Agric. Dec. 1884, 1894 (1974), aff'd, 524 F.2d 1255 (5th Cir. 1975).

FN26. Section 21 of the Animal Welfare Act provides, as follows:

§ 2151. Rules and regulations

The Secretary is authorized to promulgate such rules, regulations, and orders as he may deem necessary in order to effectuate the purposes of this chapter.

7 U.S.C. § 2151.

FN27. In re William Joseph Vergis, 55 Agric. Dec. 148, 165 n.3 (1996); In re James Petersen, 53 Agric. Dec. 80, 86 (1994); In re Mary Bradshaw, 50 Agric. Dec. 499, 507 (1991).

FN28. See In re Richard Lawson, 57 Agric. Dec. ___ (Oct. 15, 1998) (disqualifying respondents from obtaining an Animal Welfare Act license for 2 years where respondents had previously voluntarily terminated their license and were not licensed on the date the disqualification order was issued); In re Marilyn Shepherd, 57 Agric. Dec. ___ (June 26, 1998) (providing for a 7-day suspension of the respondent's Animal Welfare Act license, but stating that if the respondent is not licensed when the order is issued, the respondent is disqualified from becoming licensed under the Animal Welfare Act for 7 days); In re James J. Everhart, 56 Agric. Dec. 1400 (1997) (permanently disqualifying the respondent from obtaining an Animal Welfare Act license where the respondent was not licensed when the violations occurred or on the date the disqualification order was issued); In re William Joseph Vergis, 55 Agric. Dec. 148 (1996) (disqualifying the respondent from obtaining an Animal Welfare Act license for one year where the respondent was not licensed when the violations occurred or on the date the disqualification order was issued); In re James Petersen, 53 Agric. Dec. 80 (1994) (prohibiting the respondents from obtaining an Animal Welfare Act license for one year where the respondents were not licensed when the violations occurred or on the date the disqualification order was issued).

FN29. See generally, e.g., Merriam Webster's Collegiate Dictionary 1003 (10th ed. 1997): revocation . . . n . . . : an act or instance of revoking . . . . 1revoke . . . vt . . . 1: to annul by recalling or taking back : RESCIND < . a will> 2 : to bring or call back

Black's Law Dictionary 1321-22 (6th ed. 1990): Revocation. . . . The withdrawal or recall of some power, authority, or thing granted, or a destroying or making void of some will, deed, or offer that had been valid until revoked. . . . See also Abrogation; Cancel; Cancellation; Rescind. . . . . Revoke. To annul or make void by recalling or taking back. To cancel, rescind, repeal, or reverse, as to revoke a license or will. See also Revocation.

The Oxford English Dictionary Vol. XIII, 837-38 (2d ed. 1991): revocation . . . . 1. The action of recalling; recall (of persons); a call or summons to return. . . . . . . . . 2. The action of revoking, rescinding, or annulling; withdrawal (of a grant, etc.). . . . . revoke . . . . I. . . . 1. To recall, bring back, to a (right) belief, way of life, etc. . . . . 3. To recall; to call or summon back[.] . . . 4. To annul, repeal, rescind, cancel.

Bouvier's Law Dictionary 2955 (3d ed. 1914): REVOCATION. The recall of a power or authority conferred, or the vacating of an instrument previously made.

See also, e.g., Commonwealth Trust Co. of Pittsburgh v. United States, 96 F. Supp. 712, 717 (W.D. Pa. 1951) (citing with approval the definition of revoke in Webster's New International Dictionary (2d ed.): to recall; to annul by recalling or taking back; to repeal; to take back; to reassume; to recover; to draw back); State v. Ayala, 610 A.2d 1162, 1170 (Conn. 1992) (citing with approval the definition of revoke in Black's Law Dictionary (6th ed. 1990): to annul or make void by recalling or taking back; to cancel, rescind, repeal, reverse, as to revoke a license or will); Armstrong v. Butler, 553 S.W.2d 453, 456 (Ark. 1977) (stating that, as applied to a will, to revoke is to recall, cancel, set aside, annul, nullify, set at naught, declare null and void); Halfmoon v. Moore, 291 P.2d 846, 848 (Idaho 1955) (stating that the word revoke is defined by Funk & Wagnalls New Standard Dictionary as meaning "[t]o annul or make void by recalling or taking back; cancel; rescind; repeal; reverse; as to revoke a license"); In re Braun's Estate, 56 A.2d 201, 203 (Pa. 1948) (stating that to revoke means to recall, to take back, to repeal); Glenram Wine & Liquor Corp. v. O'Connell, 67 N.E.2d 570, 572 (N.Y. 1946) (stating that to revoke means to recall; citing the definition of revoke in the Oxford Dictionary: to annul, repeal, rescind, or cancel; citing the definition of revocation in Bouvier's Law Dictionary: the recall of a power or authority conferred or the vacating of an instrument previously made); In re Barrie's Will, 65 N.E.2d 433, 435 (Ill. 1946) (stating that to revoke is to recall, to cancel, or to set aside); In re Walters' Estate, 104 P.2d 968, 971 (Nev. 1940) (holding that: revocation of a will is an act done by the party who made the will, by which the party recalls the will; stating that to revoke is to recall, cancel, or set aside, and a revocation can only be done by the grantor, licensor, or maker of an instrument granting a right or privilege); Ford v. Greenawalt, 126 N.E. 555, 557 (Ill. 1920) (stating that: to revoke is to recall, to cancel, or to set aside, and a revocation can only be by the grantor, licensor, or maker of an instrument granting a right or privilege; a revocation is the annulment or cancellation of an instrument, act, or promise by or on behalf of the party who made it); In re Morrow's Estate, 54 A. 342, 343 (Pa. 1903) (stating that to revoke means to recall, to take back, to repeal); In re Watt's Estate, 32 A. 42, 44 (Pa. 1895) (stating that to revoke means to recall, to take back, to repeal); Mayor of City of Houston v. Houston City St. Ry. Co., 19 S.W. 127, 130 (Tex. 1892) (stating that revocation means, inter alia, recalling of power); Vogulkin v. State Bd. of Education, 15 Cal. Rptr. 335, 337 (Cal. Dist. Ct. App. 1961) (stating that revoke means to annul or make void by recalling or taking back); Touli v. Santa Cruz County Title Co., 67 P.2d 404, 406 (Cal. Dist. Ct. App. 1937) (stating that the word revoke literally means to call back; it is synonymous with to rescind, to recall, and to cancel); Bradford v. First Nat. Bank, 164 N.E. 494, 496 (Ind. Ct. App. 1929) (stating that to revoke is to repeal, to annul, to withdraw, to rescind, or to cancel); Baker v. Fifth Avenue Bank of New York, 232 N.Y.S. 238, 241 (N.Y. App. Div. 1928) (stating that revocation is defined in Bouvier's Law Dictionary as "the recall of a power or authority conferred or the vacating of an instrument previously made"); Wilmington City Ry. Co. v. Wilmington & B.S. Ry. Co., 46 A. 12, 16 (Del. Ch. 1900) (indicating that revocation means recall).

FN30. But see, e.g., Marmorstein v. New York State Liquor Authority, 144 N.Y.S.2d 275, 277-78 (N.Y. Sup. Ct. 1955) (citing with approval the definition of the word revoke in Glenram Wine & Liquor Corp. v. O'Connell, 67 N.E.2d 570, 572 (N.Y. 1946), but stating that the fact that a license had already been surrendered did not bar the board from revoking the license after a hearing); American Employers' Ins. Co. v. Radzeweluk, 4 N.Y.S.2d 74, 75, (N.Y. Sup. Ct. 1938) (stating that the fact that a license had already been surrendered did not exonerate defendants from a previous violation nor prevent the subsequent revocation of the license because of such previous violation).

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