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

In re: JUDIE HANSEN
United States
57 Agric. Dec. 1072 (1998)


Case Details
Printable Version
Summary:   Recommendations of administrative officials charged with responsibility for achieving congressional purpose of statute are highly relevant to any sanction to be imposed and are entitled to great weight in view of experience gained by administrative officials during their day-to-day supervision of regulated industry; however, recommendation of administrative officials as to sanction is not controlling, and in appropriate circumstances, sanction imposed may be considerably less, or different, than that recommended by administrative officials.

Judge Initial Decision issued by James W. Hunt, 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 and standards issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-3.142) [hereinafter the Regulations and Standards]; 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 May 6, 1996.

   On July 1, 1996, Judie Hansen, d/b/a Wild Wind Petting Zoo [hereinafter Respondent], filed an Answer to the Complaint. On July 11, 1997, Complainant filed Motion to Amend Complaint requesting the addition of paragraph 8 to the Complaint. Also, on July 11, 1997, Administrative Law Judge James W. Hunt [hereinafter ALJ] granted Complainant's Motion to Amend Complaint, but waived the requirement that Respondent file a pre-hearing written answer to the Amended Complaint (Order Granting Motion to Amend Complaint).

   The Complaint and the Amended Complaint allege that Respondent willfully violated the Animal Welfare Act and the Regulations and Standards.

   The ALJ presided over a hearing on July 23, 1997, in Minot, North Dakota. Colleen Carroll, Office of the General Counsel, United States Department of Agriculture [hereinafter USDA], represented Complainant. Respondent represented herself, with assistance from her partner, Gregory Bommelman. On October 10, 1997, Complainant filed Complainant's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof [hereinafter Complainant's Brief]. On January 30, 1998, the ALJ issued a Decision and Order [hereinafter Initial Decision and Order] directing Respondent to cease and desist from violating the Animal Welfare Act and the Regulations and Standards; assessing Respondent a $3,000 civil penalty; and suspending Respondent's Animal Welfare Act license for 30 days.

   The Hearing Clerk served the Initial Decision and Order upon Respondent on February 4, 1998, by certified mail, [FN1] accompanied by the Hearing Clerk's January 30, 1998, letter advising Respondent to file any appeal within 30 days of service, or the Initial Decision and Order would be final. Respondent requested, and I granted, an extension of time to March 20, 1998, in which to file an appeal (Informal Order of March 2, 1998).

   On March 24, 1998, Respondent filed Motion to Arrest the Decision [hereinafter Respondent's Appeal], which I infer to be Respondent's appeal 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). [FN2] But, since Respondent's Appeal was due March 20, 1998, it is late- filed.

    *3 On April 14, 1998, Respondent filed Motion for Dismissal. On May 8, 1998, Complainant filed Complainant's Response to Respondent's Appeal of Decision and Order, which contains Complainant's eight arguments in the nature of a cross-appeal [hereinafter Complainant's Response and Cross-Appeal], and on May 12, 1998, Complainant filed Complainant's Response to Respondent's Motion for Dismissal. On October 7, 1998, Respondent filed Respondent's Response to Complainant's Response and Cross-Appeal, and on October 15, 1998, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for a ruling on Respondent's Motion for Dismissal and decision.

   Respondent's Motion for Dismissal is dismissed. The Rules of Practice provide that "[a]ny motion will be entertained other than a motion to dismiss on the pleading" (7 C.F.R. § 1.143(b)). [FN3] Moreover, Respondent's Motion for Dismissal is redundant because it raises issues that Respondent raised in Respondent's Appeal and are addressed in this Decision and Order, infra, in response to Respondent's Appeal.

   Based upon a careful consideration of the record in this proceeding, I agree with the ALJ in 20 out of the 23 violations the ALJ found out of the 33 alleged violations in the Complaint and Amended Complaint. I also agree with the ALJ that Respondent willfully violated the Animal Welfare Act and the Regulations and Standards. Therefore, pursuant to 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 ALJ's conclusions of law.

   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, REGULATIONS, AND STANDARDS

   7 U.S.C.:

TITLE 7--AGRICULTURE

   . . . .

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

   . . . .

   § 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[.]

   . . . .

   (h) The term "exhibitor" means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not[.]

    *4 § 2133. Licensing of dealers and exhibitors

   The Secretary shall issue licenses to dealers and exhibitors upon application therefor in such form and manner as he may prescribe and upon payment of such fee established pursuant to 2153 of this title: Provided, That no such license shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary pursuant to section 2143 of this title[.]

   § 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.

   § 2141. Marking and identification of animals

   All animals delivered for transportation, transported, purchased, or sold, in commerce, by a dealer or exhibitor shall be marked or identified at such time and in such humane manner as the Secretary may prescribe: Provided, That only live dogs and cats need be so marked or identified by a research facility.

   § 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. §§ 2132(f), (h); 2133; 2140; 2141; 2146(a).

   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. . . .

    *5 . . . .

   Exhibitor means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary. This term includes carnivals, circuses, animal acts, zoos, and educational exhibits, exhibiting such animals whether operated for profit or not. . . .

   . . . .

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. . . .

   . . . .

SUBPART E--IDENTIFICATION OF ANIMALS

   § 2.50 Time and method of identification.

   (a) A class "A" dealer (breeder) shall identify all live dogs and cats on the premises as follows:

   (1) All live dogs and cats held on the premises, purchased, or otherwise acquired, sold or otherwise disposed of, or removed from the premises for delivery to a research facility or exhibitor or to another dealer, or for sale, through an auction sale or to any person for use as a pet, shall be identified by an official tag of the type described in § 2.51 affixed to the animal's neck by means of a collar made of material generally considered acceptable to pet owners as a means of identifying their pet dogs or cats [footnote omitted], or shall be identified by a distinctive and legible tattoo marking acceptable to and approved by the Administrator.

   (2) Live puppies or kittens, less than 16 weeks of age, shall be identified by:

   (i) An official tag as described in § 2.51;

   (ii) A distinctive and legible tattoo marking approved by the Administrator; or

   (iii) A plastic-type collar acceptable to the Administrator which has legibly placed thereon the information required for an official tag pursuant to § 2.51.

   (b) A class "B" dealer shall identify all live dogs and cats under his or her control or on his or her premises as follows:

   (1) When live dogs or cats are held, purchased, or otherwise acquired, they shall be immediately identified:

   (i) By affixing to the animal's neck an official tag as set forth in § 2.51 by means of a collar made of material generally acceptable to pet owners as a means of identifying their pet dogs or cats; or

   (ii) By a distinctive and legible tattoo marking approved by the Administrator.

   . . . .

   (3) Live puppies or kittens less than 16 weeks of age, shall be identified by:

   (i) An official tag as described in § 2.51;

   (ii) A distinctive and legible tattoo marking approved by the Administrator; or

   (iii) A plastic-type collar acceptable to the Administrator which has legibly placed thereon the information required for an official tag pursuant to § 2.51.

   . . . .

   (c) A class "C" exhibitor shall identify all live dogs and cats under his or her control or on his or her premises, whether held, purchased, or otherwise acquired:

    *6 (1) As set forth in paragraph (b)(1) or (b)(3) of this section[.]

   . . . .

   (d) Unweaned puppies or kittens need not be individually identified as required by paragraphs (a) and (b) of this section while they are maintained as a litter with their dam in the same primary enclosure, provided the dam has been individually identified.

   . . . .

SUBPART G--RECORDS

   § 2.75 Records: Dealers and exhibitors.

   (a)(1) Each dealer, other than operators of auction sales and brokers to whom animals are consigned, and each exhibitor shall make, keep, and maintain records or forms which fully and correctly disclose the following information concerning each dog or cat purchased or otherwise acquired, owned, held, or otherwise in his or her possession or under his or her control, or which is transported, euthanized, sold, 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 a dog or cat was purchased or otherwise acquired whether or not the person is required to be licensed or registered under the Act;

   (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 a dog or cat was sold or given and that person's license or registration number if he or she is licensed or registered under the Act;

   (v) The date a dog or cat was acquired or disposed of, including by euthanasia;

   (vi) The official USDA tag number or tattoo assigned to a dog or cat under §§ 2.50 and 2.54;

   (vii) A description of each dog or cat which shall include:

   (A) The species and breed or type;

   (B) The sex;

   (C) The date of birth or approximate age; and

   (D) The color and any distinctive markings;

   (viii) The method of transportation including the name of the initial carrier or intermediate handler or, if a privately owned vehicle is used to transport a dog or cat, the name of the owner of the privately owned vehicle;

   (ix) The date and method of disposition of a dog or cat, e.g., sale, death, euthanasia, or donation.

   . . . .

   (b)(1) Every dealer other than operators of auction sales and brokers to whom animals are consigned, and 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.

    *7 (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;

   (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.

   . . . .

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.

   . . . .

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.

   . . . .

PART 3--STANDARDS

SUBPART A--SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT, AND TRANSPORTATION OF DOGS AND CATS

FACILITIES AND OPERATING STANDARDS

   § 3.1 Housing facilities, general.

   (a) Structure; construction. Housing facilities for dogs and cats must be designed and constructed so that they are structurally sound. They must be kept in good repair, and they must protect the animals from injury, contain the animals securely, and restrict other animals from entering.

   (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 or 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 business. If a housing facility is located on the same premises as another business, it must be physically separated from the other business so that animals the size of dogs, skunks, and raccoons are prevented from entering it.

    *8 . . . .

   (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. Foods requiring refrigeration must be stored accordingly, and all food must be stored in a manner that prevents contamination and deterioration of its nutritive value. All open supplies of food and bedding must be kept in leakproof containers with tightly fitting lids to prevent contamination and spoilage. Only food and bedding that is currently being used may be kept in the animal areas. Substances that are toxic to the dogs or cats but 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.

   (f) Drainage and waste disposal. Housing facility operators must provide for regular and frequent collection, removal, and disposal of animal and food wastes, bedding, debris, garbage, water, other fluids and wastes, and dead animals, in a manner that minimizes contamination and disease risks. Housing facilities must be equipped with disposal facilities and drainage systems that are constructed and operated so that animal waste and water are rapidly eliminated and 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 or 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, pests, and vermin infestation. Standing puddles of water in animal enclosures must be drained or mopped up so that the animals stay 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, or animal areas.

   . . . .

   § 3.2 Indoor housing facilities.

   . . . .

   (d) Interior surfaces. The floors and walls of indoor housing facilities, and any other surfaces in contact with the animals, must be impervious to moisture. The ceilings of indoor housing facilities must be impervious to moisture or be replaceable (e.g., a suspended ceiling with replaceable panels).

   § 3.3 Sheltered housing facilities.

   . . . .

   (e) Surfaces. (1) The following areas in sheltered housing facilities must be impervious to moisture:

   (i) Indoor floor areas in contact with the animals;

   (ii) Outdoor floor areas in contact with the animals, when the floor areas are not exposed to the direct sun, or are made of a hard material such as wire, wood, metal, or concrete; and

    *9 (iii) All walls, boxes, houses, dens, and other surfaces in contact with the animals.

   . . . .

   § 3.4 Outdoor housing facilities.

   . . . .

   (b) Shelter from the elements. Outdoor facilities for dogs or cats must include one or more shelter structures that are accessible to each animal in each outdoor facility, and that are large enough to allow each animal in the shelter structure to sit, stand, and lie in a normal manner, and to turn about freely.

   . . . .

   § 3.6 Primary enclosures.

   . . . .

   (b) Additional requirements for cats.

   . . . .

   (4) Resting surfaces. Each primary enclosure housing cats must contain a resting surface or surfaces that, in the aggregate, are large enough to hold all the occupants of the primary enclosure at the same time comfortably. The resting surfaces must be elevated, impervious to moisture, and be able to be easily cleaned and sanitized, or easily replaced when soiled or worn. Low resting surfaces that do not allow the space under them to be comfortably occupied by the animal will be counted as part of the floor space.

   . . . .

ANIMAL HEALTH AND HUSBANDRY STANDARDS

   . . . .

   § 3.9 Feeding.

   . . . .

   (b) Food receptacles must be used for dogs and cats, must be readily accessible to all dogs and cats, and must be located so as to minimize contamination by excreta and pests, and be protected from rain and snow. Feeding pans must be either be made of a durable material that can be easily cleaned and sanitized or be disposable. If the food receptacles are not disposable, they must be kept clean and must be sanitized. . . .

   . . . .

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

   (a) Cleaning of primary enclosures. Excreta and food waste must be removed from primary enclosures daily, and from under primary enclosures as often as necessary to prevent an excessive accumulation of feces and food waste, to prevent the soiling of dogs or cats contained in the primary enclosures, and to reduce disease hazards, insects, pests and odors. . . .

   . . . .

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

   (d) Pest control. An effective program for the control of insects, external parasites affecting dogs and cats, and birds and mammals that are pests, must be established and maintained so as to promote the health and well-being of the animals and reduce contamination by pests in animal areas.

    *10 . . . .

SUBPART C--SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT AND TRANSPORTATION OF RABBITS FACILITIES AND OPERATING STANDARDS

   . . . .

   § 3.53 Primary enclosures.

   All primary enclosures for rabbits shall conform to the following requirements:

   . . . .

   (c) Space requirements for primary enclosures acquired on or after August 15, 1990.

   (1) Primary enclosures shall be constructed and maintained so as to provide sufficient space for the animal to make normal postural adjustments with adequate freedom of movement.

   (2) Each rabbit housed in a primary enclosure shall be provided a minimum amount of floor space, exclusive of the space taken up by food and water receptacles[.] . . .

   . . . .

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.

   . . . .

   (d) Waste disposal. Provision shall be made for the removal and disposal of animal and food wastes, bedding, dead animals, trash and debris. Disposal facilities shall be so provided and operated as to minimize vermin infestation, odors, and disease hazards. . . .

   . . . .

ANIMAL HEALTH AND HUSBANDRY STANDARDS

   . . . .

   § 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. . . .

   . . . .

   (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.

   9 C.F.R. §§ 1.1; 2.1(a)(1), .50(a), (b)(1), (b)(3), (c)(1), (d), . 75(a)(1)(i)-(ix), (b)(1)(i)-(vii), .100(a), .126(a); 3.1(a)-(b), (e)-(f), . 2(d), .3(e)(1)(i)-(iii), .4(b), .6(b)(4), .9(b), .11(a), (c)-(d), .53(c)(1)- (2), .125(a), (d), .131(a), (c) (footnotes omitted).

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

   . . . .

Statement of the Case and Law

   Respondent . . . [was] licensed by [the Animal and Plant Health Inspection Service [hereinafter APHIS]] as a [class "C"] animal exhibitor from 1992 to 1996 [(Tr. 242-45; CX 1-4, 6)]. In 1996, [Respondent] changed her license from [class "C"] exhibitor to [class "A"] dealer [(breeder) [FN4] (Tr. 245; CX 6, 22). Respondent] does business as the Wild Wind Petting Zoo [(Tr. 26- 27, 245; CX 4). Respondent] has exhibited . . . animals to the public in North Dakota, South Dakota, and Minnesota (Tr. 2[58- ]59).

    *11 The APHIS inspector for [Respondent's] facility has been Mr. Donovan Borchert [(Tr. 13, 17)]. The Complaint in this proceeding alleges that [Respondent] violated the Animal Welfare Act and the Regulations and Standards for the care of animals [as revealed] at inspections conducted by [inspector] Borchert on June 19, August 8, and October 25, 1995 [(Compl. ¶¶ 1-7)]. The Amended Complaint alleges that [Respondent also] refused to allow [inspector] Borchert to inspect her facility on June 11, 1997 [(Amended Compl. ¶ 8)].

   [Respondent's] alleged violations of the Regulations and Standards are based almost entirely on the findings contained in [inspector] Borchert's inspection reports. [Inspector Borchert] testified that he could not remember "a whole lot" about the actual inspections (Tr. 24[-25], . . ., 29).

   The factual findings necessary to support the conclusion that a respondent violated the Regulations [and Standards] must be based on reliable, probative, and substantial evidence. Substantial evidence is generally defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The findings in an APHIS inspector's report may constitute substantial evidence. In re Fred Hodgins, 56 Agric. Dec. [1242, 1294-95 (1997), appeal docketed, No. 97- 3899 (6th Cir. Aug. 12, 1997)]. However, the probative value of a report depends on the extent to which the inspector documents the facts supporting [the inspector's] findings. . . .

   The purpose of the Animal Welfare Act is to [ensure] the humane care and treatment of animals regulated under the [Animal Welfare] Act (7 U.S.C. §§ 2131 [-2159]). [Animals regulated by the Animal Welfare Act] include animals [sold to or] exhibited to the public. . . .

   The [Animal Welfare] Act and Regulations require that [dealers and] exhibitors be licensed (7 U.S.C. § 2133; 9 C.F.R. § 2.1[(a)(1))]. Section 2.100(a) of the Regulations provides that "[e]ach dealer [and] exhibitor . . . 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)). Complainant can seek [civil] penalties and the suspension or revocation of a dealer's [or exhibitor's] license for a violation of the [Regulations or S]tandards. Complainant has the burden of proving a violation by a preponderance of the evidence. In re Craig Lesser, 52 Agric. Dec. 155, 166 (1993)[, aff'd, 34 F.3d 1301 (7th Cir. 1994)].

Violations

   1. Paragraph 5 of the Complaint alleges that [on October 25, 1995, Respondent] violated section 2.50(c) of the Regulations (9 C.F.R. § 2.50(c)) by failing to identify dogs under her control. [FN5] However, section 2.50(d) [of the Regulations (9 C.F.R. § 2.50(d)) provides that] unweaned puppies [are not required to be individually identified] while they are maintained as a litter with their dam in the same primary enclosure, provided the dam has been individually identified.

    *12 . . . .

   [Inspector] Borchert's October 25, 1995, inspection report, on which the alleged violation of [9 C.F.R. §] 2.50 is based, [states] only that "new dogs and puppies kept back for breeding need to be identified[.] Correct by 10- 30-95 [.]" (CX 3 [at 2], item 7, III, #45.) It does not state whether the puppies were weaned or not.

   [Respondent's] testimony regarding dog identification is as follows:

   [BY MS. CARROLL:]

   Q. Okay. And you do have dogs that do not always wear their tags. Is that correct?

   [BY RESPONDENT:]

   A. I try to put the tags on them during the day, but I -- I just can't have a collar and a tag on them at night because they -- several of them sleep on the bed and they get up and they shake and it wakes me up and I have a hard time getting back to sleep. So I'll take them off at night, sometimes I don't put them back on in the daytime.

   Q. And on an inspection, during the day, Mr. Borchert found puppies that did not have collars.

   A. Those were dogs . . .

   Q. Is that correct?

   A. Yes. Those were poodles that I had recently groomed. I hadn't washed them yet and that's when I was using those paper collars that you write on. I had taken off the old collars, groomed the puppies and I ran out of time that day so I put them back in the pen and hadn't put their tags back on them because I was going to wash them the next day. You know, there I'd just go through a whole bunch more tags. These puppies are all identified with numbers on a health card that's on the front of the pen.

   Q. They weren't wearing their tags though. You agree?

   A. They weren't wearing the tags, but they were identified.

   Tr. 276-77.

   Complainant contends that [Respondent's] testimony constitutes an admission that [Respondent] did not identify her dogs.

   [Respondent's] testimony, however, is not that she failed to identify her dogs, but that their tags were temporarily removed at night, or for grooming. [While section 2.50(c) of the Regulations (9 C.F.R. § 2.50(c)) does not provide any exception from the identification requirement for dogs being groomed and it applies [during] the night as well as [during] the day, the record supports a finding that the "new dogs" referred to in inspector Borchert's report (CX 3) are puppies.] . . . [T]he record does not show, and [inspector] Borchert's report [(CX 3)] does not [state], that the[se puppies] were weaned and thereby required to be identified. Complainant has failed to meet its burden of proving that [Respondent] failed to identify her dogs, in violation of section 2.50(c) of the Regulations [(9 C.F.R. § 2.50(c))].

   2. Paragraph 3 of the Complaint alleges that on June 19[, 1995,] and October 25, 1995, [Respondent] failed to [make,] keep, and maintain required records, in violation of section[] 2.75(a) and (b) of the Regulations [(9 C.F.R. § 2.75(a), (b))].

   Section[] 2.75(a) and (b) [of the Regulations (9 C.F.R. § 2.75(a), (b))] requires a dealer and exhibitor to make, keep, and maintain records or forms which fully and correctly disclose information concerning animals purchased or otherwise acquired, owned, held, or otherwise in the exhibitor's or dealer's possession or under his or her control.

    *13 [Inspector] Borchert's inspection report states that on June 19, 1995, "(1) sales at pet zoo's [sic] are not being made (2) puppies must have ID numbers and item 7 and 11 and breed placed on sales records (3) add porcupine to records[.]" (CX 1 [at 3, item 7, IV,] #46.) [Inspector Borchert's] report for October 25, 1995, states that "items #7 and 9-13 old 7006 and 4A new 7006 are not being filled out[.] Correct by 10-26-95[.]" (CX 3 [at 2, item 7, III,] #46.)

   [Inspector] Borchert testified that [Respondent's] reports were "not being completely filled out," but that he could not remember what he meant when he referred to items 7 and 11 (Tr. 34, 77).

   [Respondent] admitted that some of her forms and reports were not always completely filled out (Answer at 11-14). [Respondent blamed her failure to complete forms and reports on the] . . . difficulty [she had] obtaining information from buyers. [Respondent] also said that [inspector] Borchert insisted that she put a buyer's telephone number on the form even though [the buyer's telephone number is] not required by the Regulations.

   . . . .

   [The record is not sufficiently clear to determine the nature of the information that Respondent failed to include in her records and whether the information that Respondent failed to include in her records was required to be kept by 9 C.F.R. § 2.75(a) and (b). Therefore, paragraph 3 of the Complaint is dismissed.]

   3. Paragraph 4(c) of the Complaint alleges that on [June 19, 1995, and] October 25, 1995, [Respondent] failed to keep her facility in good repair so as to protect her animals from injury. Section 3.1(a) of the Standards requires that "[h]ousing facilities for dogs and cats must be designed and constructed so that they are structurally sound[,]" "must be kept in good repair," and "must protect the animals from injury" [(9 C.F.R. § 3.1(a)].

   [Inspector] Borchert's October 25, 1995, inspection report states: "(1) ground wire along sides and fronts of runs needs to be covered or sharp points trimed [sic] off and wire put down so dogs can not become entangled[.] Correct by 11- 25-95[.]" (CX 3 [at 2, item 7, III], #10.)

   [Respondent] did not deny that the wire had sharp points, but contended that [the sharp points] would not injure the dogs because the wire was pushed into the ground and covered with gravel (Tr. 266).

   Nevertheless, wire with sharp points, even if covered with gravel, reflects a need for repair and a potential source of injury to animals. It constitutes a violation of section 3.1(a) [of the Standards (9 C.F.R. § 3.1(a))].

   4. Paragraph 4(b) of the Complaint alleges that [on June 19, 1995, and October 25, 1995, Respondent] failed to ensure that the dog areas were free of clutter, including equipment, furniture, and stored material, in violation of section 3.1(b) of the Standards [(9 C.F.R. § 3.1(b))].

   . . . .

   [Inspector] Borchert's June 19, 1995, [inspection] report [states:] "(1) all open feed sacks and dishes or pails setting [sic] around outside of enclosures must be placed in closed containers with lids (2) feed supply of baged [sic] feed stored on top of enclosures must not be kept in animal area[.] Correct by 6-30-95[.]" (CX 1 [at 2, item 7, III], #13.)

    *14 [Inspector] Borchert's August 8[, 1995, inspection] report . . . [also lists a violation of section 3.1(b) of the Standards (9 C.F.R. § 3.1(b)), but Complainant did not include the August 8, 1995, violation in the Complaint or Amended Complaint.

   Inspector Borchert's] October 25[, 1995, inspection] report states:

   (1) new welp [sic]/kennel area in garage or shop needs to have all machinery parts, tools and supplys [sic] removed and kept back at least 6 ft. from enclosures inside and discarded matter, old wood, scrap metal and pickup box around outside runs.

   CX 3 [at 3, item 7, IV], #11.

   [Respondent] said the clutter was in the "shop area" and admitted that the area needed cleaning, but contended that it did not harm the animals (Tr. 265).

   [The evidence supports a finding that on June 19, 1995, and October 25, 1995, Respondent failed] to keep the housing facility free from clutter, [in] violation of section 3.1(b) [of the Standards (9 C.F.R. § 3.1(b))].

   5. Paragraph 4(a) of the Complaint alleges that on June 19[, 1995,] and October 25, 1995, [Respondent] failed to store supplies of food and bedding [in a manner that protects the supplies from spoilage, contamination, and vermin infestation, in violation of] section 3.1(e) of the Standards [(9 C.F.R. § 3.1(e))].

   . . . .

   [Inspector] Borchert's June [19, 1995, inspection] report [states]:

   (1) All open feed sacks and dishes or pails setting [sic] around outside of enclosures must be placed in closed containers with lids (2) Feed supply of baged [sic] feed stored on top of enclosures must not be kept in animal area [.] Correct by 6-30-95[.]

   CX 1 [at 2, item 7, III], #13.

   [Inspector] Borchert's October [25, 1995, inspection] report states:

   (1) Bottels [sic] of bleach and toxic substances around enclosure in shop area must be stored in cabinets with doors[.] Correct by 11-25-95[.]

   CX 3 [at 2, item 7, III], #13.

   [Respondent] said the bottle of bleach had been diluted, but admitted that there were empty feed sacks and that a food container was left open on one occasion (Tr. 260, 274-75).

   [Respondent's] failures [on June 19, 1995, and October 25, 1995,] to properly store supplies [are] violations of section 3.1(e) [of the Standards (9 C.F.R. § 3.1(e))].

   6. Paragraph 6(a) of the Complaint alleges that on August 8[, 1995,] and October 25, 1995, [Respondent] failed to [provide for the regular and frequent collection, removal, and disposal of animal waste and bedding, in violation of] section 3.1(f) of the [S]tandards [(9 C.F.R. § 3.1(f))].

   . . . .

   [Inspector] Borchert's August 8[, 1995, inspection] report states:

   (1) Sack of old soilded [sic] newspapers and soild [sic] newspapers laying down in front of enclosures must be placed in a closed container with a tight fitting lid and the container must be leakproof[.] Correct by 8- 10-95[.]

   CX 2 [at 2, item 7, III], #14.

   [Inspector Borchert's] October 25[, 1995, inspection] report states:

    *15 (1) Open 5 gal. pail holding feces at end of dog runs must be covered or removed.

   CX 3 [at 3, item 7, IV], #14.

   [Respondent] testified that a worker was collecting soiled newspapers as he was cleaning the enclosures and had placed them on the ground to answer the telephone before removing them. She said they were on the ground for no more than 5 minutes (Tr. 280).

   As for the open pail of feces, she said a worker was using the pail to clean the cages and had left it on the ground to accompany [inspector] Borchert on his inspection (Tr. 211[- 12]).

   The soiled newspapers did not constitute a violation, as they occurred as part of the regular cleaning of the facility. [Respondent], however, . . . violated [section] 3.1(f) of the [S]tandards [(9 C.F.R. § 3.1(f)) on October 25, 1995,] by leaving the pail of feces temporarily uncovered . . . . [Section 3.1(f) of t]he [S]tandards requires a container of feces to be covered "at all times." . . . .

   7. Paragraph 2(a) of the Complaint alleges that [on June 19, 1995, and August 8, 1995, Respondent] failed to [ensure that the floors and walls of indoor housing facilities were] impervious to moisture, as required by sections 3.2(d) and 3.3(e) of the [S]tandards [(9 C.F.R. §§ 3.2(d), .3(e))].

   [Inspector] Borchert's June [19, 1995, inspection] report states:

   All raw and clawed or chewed wood throughout exposed to dogs must be sealed.

   CX 1 [at 3, item 7, IV], #16 & #20.

   [Inspector Borchert's] August [8, 1995, inspection] report states:

   (1) All raw wood and chewed siding in enclosures on east end of house and all raw wood on enclosures and welp [sic] boxes in enclosures needs [sic] to be sealed so it is impervious to moisture. (2) Dogs in house must be moved to a facility 10-15 dogs.

   CX 2 [at 3, item 7, IV], #16 & #20.

   [Respondent] testified that she painted all surfaces with Thompson's Water Seal, a colorless water sealer (Tr. 211).

   [Inspector] Borchert did not explain how he determined that the surfaces, even those that were clawed or chewed, were not impervious to moisture. He said that the only way to test the surface is by spraying it with water and that he did not spray water on the surface. (Tr. [119-]20, 194.) I find that Complainant has not met the burden of proving that [Respondent] violated sections 3.2(d) and 3.3(e) of the [S]tandards [(9 C.F.R. §§ 3.2(d), .3(e)), as alleged in paragraph 2(a) of the Complaint].

   8. Paragraph 1(a) of the Complaint alleges that [on June 19, 1995, Respondent] did not provide sufficient space for dogs in an out[door] facility[, in violation of s]ection 3.4(b) of the [S]tandards [(9 C.F.R. § 3.4(b))].

   . . . .

   [Inspector] Borchert's June [19, 1995, inspection] report states that "2 x 4 shelter in pen #6 housing 6 poodles must be enlarged to hold all dogs comfortably and protect them[.] Correct by 6-30-95[.] Additional shelter provided 6-19-95." (CX 1 at 2, item 7, III], #23.)

   [Respondent] said that the enclosure contained two dogs, but that she had allowed her four house dogs to go into the outdoor pen for "a few hours" the day of the inspection . . . [and that] the dogs could find protection under the deck and ramp, as well as in the shelter (Answer at 1).

    *16 [Complainant did not prove that the shelter structures were not large enough to allow each animal in the shelter to sit, stand, lie in a normal manner, and turn about freely, in violation of section 3.4(b) of the Standards (9 C.F.R. § 3.4(b))].

   [9]. Paragraph 1(b) of the Complaint alleges that [on June 19, 1995, Respondent] housed kittens in a primary enclosure that lacked an elevated resting surface[, in violation of s]ection 3.6(b) of the [S]tandards [(9 C.F.R. § 3.6(b))].

   . . . .

   [Inspector] Borchert's June [19, 1995, inspection] report states:

   Enclosure housing kittens must have a[n] elevated rest area placed in the enclosure large enough to hold all animals in the enclosures[.] Correct by 6- 30-95[.]

   CX 1 [at 2, item 7, III,] #30.

   [Respondent] said that a neighbor had given the kittens to her to find a home for them and that she had put them in a "traveling" pen. She said she was not aware of the requirement for an elevated resting [surface] for the kittens and she had found a home for them the following day. (Answer at 2.)

   Whether [Respondent] was aware of the requirement or not, as an animal exhibitor, [Respondent is] charged with knowing the requirements for the care of animals. Her failure to provide the kittens with an elevated resting [surface] is a violation of section 3.6(b) [of the Standards (9 C.F.R. § 3.6(b))].

   10. Paragraph 1(c) of the Complaint alleges that [on June 19, 1995, Respondent] failed to keep non-disposable food receptacles clean and sanitized [, in violation of s]ection 3.9(b) [of the Standards (9 C.F.R. § 3.9(b))].

   . . . .

   [Inspector] Borchert's June [19, 1995, inspection] report states only that "Dirty feed receptacles must be kept clean[.] Correct by 6-20-95[.]" (CX 1 [at 3, item 7, III], #34.) The report does not state that the alleged dirt was due to earth, soil, excreta, or pests.

   [Respondent] said that, except for this one incident, she had never been charged with a dirty receptacle and that in this instance [inspector] Borchert was not referring to a food utensil, but to a water receptacle which, in any event, was not dirty, but which had mineral deposits caused by hard water [(Tr. 282-83; Answer at 3)].

   It is not shown that mineral deposits constitute a dirty receptacle. I find that Complainant has failed to show by a preponderance of the evidence that [Respondent] violated section 3.9(b) [of the Standards (9 C.F.R. § 3.9(b))].

   11. Paragraph 1[(f)] of the Complaint alleges that [on June 19, 1995, Respondent] failed to remove excreta from . . . primary enclosure[s for dogs, in violation of s]ection 3.11(a) [of the Standards (9 C.F.R. § 3.11(a))].

   . . . .

   [Inspector] Borchert's June [19, 1995, inspection] report states:

   Chicken and ducks housed in with dogs in enclosures beside dogs with large feces accumulated [sic] must be moved to prevent pest problems[.] Correct by 6- 25-95[.]

   CX 1 [at 3, item 7, III], #36.

   [Inspector] Borchert's testimony did nothing to clarify this vague finding. He said he could not remember the matter (Tr. 153-56). [Respondent] said chickens, ducks, and dogs were not housed together and that the ducks caused their wood chip bedding to get wet, causing it to look like feces [(Tr. 283- 84). . . .

    *17 . . . .

   . . . I conclude that Respondent rebutted Complainant's evidence that Respondent violated section 3.11(a) of the Standards (9 C.F.R. § 3.11(a)) on June 19, 1995, as alleged in paragraph 1(f) of the Complaint, and therefore paragraph 1(f) of the Complaint is dismissed.]

   12. Paragraph 2(d) of the Complaint alleges that [on June 19, 1995, and August 8, 1995, Respondent] failed to keep the premises clean and to control weeds [, in violation of s]ection 3.11(c) of the [S]tandards [(9 C.F.R. § 3.11(c))].

   . . . .

   [Inspector] Borchert's June [19, 1995, inspection] report states:

   (1) pallets and supplys [sic] stored around dog facility must be removed from aginst [sic] house and stored neatly away to prevent pest problems. Correct by 6-25-95[.]

   CX 1 [at 3, item 7, III], #37.

   [Inspector Borchert's] August [8, 1995, inspection] report states:

   (1) tall weeds around enclosures on east end of house need to be mowed or removed[.] Correct by 8-15-95[.]

   CX 2 [at 2, item 7, III], #37.

   [Respondent] said that the pallets and other material were due to construction activities at her facility and that they were kept away from the animals so as not to be a danger to them [(Answer at 9)]. As for the weeds, she said they were only "pig weeds" which had not been cut because her mower was broken, but that she cut the weeds after the inspection [(Tr. 162; Answer at 10)].

   [Respondent's] failure to keep the facility clean and her failure to cut the weeds constitute violation[s] of section 3.11(c) [of the Standards (9 C.F.R. § 3.11(c))].

   13. Paragraph 1(e) of the Complaint alleges that [on June 19, 1995, Respondent] failed to maintain an effective pest control program[, in violation of] section 3.11(d) of the [S]tandards [(9 C.F.R. § 3.11(d))].

   . . . .

   [Respondent] said that this was the only occasion when there were "a lot of flies" during an inspection. She said she promptly removed the dogs and sprayed the enclosure with a kennel-approved spray she kept in the enclosure. She said she also uses baits and traps and has turkeys to eat flies and bugs. [(Answer at 4-5.)]

   An "effective" program under section 3.11(d) [of the Standards (9 C.F.R. § 3.11(d)) does not require the complete elimination of pests, such as flies, which is probably impossible to achieve, but a program to "reduce" contamination by pests. The appearance of flies on only one occasion does not necessarily establish that [Respondent] lacked an effective pest control program. The action she took also reflects the maintenance of such a program. [Respondent] did not violate section 3.11(d) [of the Standards (9 C.F.R. § 3.11(d))].

   14. Paragraph 2(c) of the Complaint alleges that [on June 19, 1995, and August 8, 1995, Respondent] failed to provide sufficient space for rabbits in their primary enclosure, as required by section 3.53(c) of the [S]tandards [(9 C.F.R. § 3.53(c)), [FN6] which] . . . sets forth in tables the minimum space for rabbits in inches according to the weight of the rabbits and whether they are housed in groups, as individuals, or as nursing females.

    *18 In [the] June [19, 1995,] inspection report, [inspector] Borchert found that:

   11 rabbits, 7 small and 4 large, house[d] in an enclosure measuring 2 x 4 ft. does not provide the required space need for each animal house in the enclosure [-] small rabbits need 1.5 sq. ft. each and large rabbits 3 sq. ft. - correct by 6-25-95[.]

   CX 1 [at 3, item 7, III], #30.

   The appropriate table in section 3.53(c) [of the Standards (9 C.F.R. § 3.53(c))] requires that each individual small rabbit have 1.5 square feet of floor space and each larger (up to 8.8 pounds) rabbit have at least 3 square feet. An enclosure that measures 2 feet by 4 feet is too small for th[e] number [and size] of [rabbits identified on inspector Borchert's June 19, 1995, inspection report].

   [Respondent] contends that [inspector] Borchert used the wrong table to calculate the space requirements. She states that the table for rabbits in groups should be used. [(Answer at 8- 9.)]

   Even using that table, however, the enclosure was still too small for the number of [rabbits] it contained. The [S]tandards require that a group of 11 rabbits housed together must be in an enclosure that provides at least 432 square inches of space for each [rabbit]. For this group, each of the seven small rabbits would be entitled to one square foot of space, and each of the four large rabbits would be entitled to two square feet. Therefore, the enclosure was too small for these [rabbits.

   Inspector] Borchert also found in his August [8, 1995, inspection] report that [Respondent] housed 8 rabbits in an 8- square foot enclosure, 5 rabbits in another 8-square foot enclosure, and 7 rabbits in a 6.25-square foot enclosure [(CX 2 at 3, item 7, IV, #30)]. These enclosures do not meet the minimum space requirements.

   [Respondent] contended that some of the rabbits are not subject to the [Animal Welfare] Act because they are "meat" rabbits (Tr. 189-93). However, there was nothing to distinguish those from the exhibition or breeding rabbits housed in the enclosures.

   Accordingly, I find that [Respondent] violated section 3.53(c) [of the Standards (9 C.F.R. § 3.53(c))].

   15. Paragraph 7 of the Complaint alleges that [on June 19, 1995, August 8, 1995, and October 25, 1995, Respondent] failed to maintain facilities in good repair for the protection of the animals[, in violation of] section 3.125(a) of the [S]tandards [(9 C.F.R. § 3.125(a))].

   . . . .

   The inspection reports [for] June [19, 1995,] and August [8, 1995,] refer to a cougar. The June [19, 1995, inspection] report states:

   Cougar is now being house[d] in a school bus with no perimeter fence and the back bus door is left open so one can walk right in and up to cougar. A door to prevent this must be used.

   [CX 1 at 3, item 7, IV, #10, #26.]

   The August [8, 1995, inspection] report states:

   Cougar is now being house[d] in a school bus with no perimeter fence and the back door of the bus is left open so one can walk right up to the cougar on his chain. A perimeter fence must be placed around the school bus enclosure.

    *19 [CX 2 at 3, item 7, IV, #10, #26.]

   The June [19, 1995,] and October [25, 1995, inspection] reports refer to enclosures for ferrets. The June [19, 1995, inspection] report states:

   (1) Floor wire in ferret enclosure is broken and rusted off leaving sharp points exposed. Also this floor wire is 1 x 1 1/2 in holes which are to [sic] large for ferrets housed in the enclosure to walk normally[.] Correct by 6-25- 95[.]

   [CX 1 at 2, item 7, III, #10.]

   The October [25, 1995, inspection] report states:

   (1) Nails around entrance to ferret enclosure inside shelter need to be removed [.] Correct by 10-26-95[.]

   [CX 3 at 2, item 7, III, #10.]

   [Respondent] did not deny these allegations. [Respondent] said that the cougar had been moved at inspector Borchert's recommendation from being chained in a pen to the bus [(Answer at 18). Respondent] said the bus is normally locked but had been left open to allow a person to take pictures of the animal [(Tr. 275). Respondent] said that the ferret cage did not have nails, but had exposed heads, which she removed [(Answer at 17)].

   [Respondent] violated section 3.125(a) of the [S]tandards [(9 C.F.R. § 3.125(a))] by failing to maintain the facility so as to protect the animals from injury.

   16. Paragraph 2(b) of the Complaint alleges that [on June 19, 1995, and August 8, 1995, Respondent] failed to remove and dispose of animal waste, in violation of section 3.125(d) of the [S]tandards [(9 C.F.R. § 3.125(d))].

   . . . .

   [Inspector] Borchert's June [19, 1995,] inspection report states: "manure piles around barn need to be removed - correct by 7-19-95" (CX 1 [at 2, item 7, III,] #14), and the August [8, 1995, inspection] report states: "manure pile in front of barn needs to be removed 5-6 dump trucks full - correct by 9-8-95" (CX 2 [at 3, item 7, III], #14).

   [Respondent] said this pile was horse manure and straw, which was largely decomposed, and presented no health hazard to her animals. [Respondent] also said she has moved the pile. (Answer at 8.)

   Nevertheless, manure [is] animal waste [and Respondent is required by] the [S]tandards [to provide for removal and disposal of animal waste. Respondent] violated section 3.125(d) [of the Standards (9 C.F.R. § 3.125(d))] by maintaining the manure pile at the time of the [June 19, 1995, and August 8, 1995,] inspection[s].

   17. Paragraph 6(b) of the Complaint alleges that [on August 8, 1995, and October 25, 1995, Respondent] violated section 3.131(a) of the [S]tandards [(9 C.F.R. § 3.131(a))] by failing to remove excreta from the ferret enclosure. . . .

   . . . .

   Inspector Borchert's August [8, 1995, inspection] report [states] that "ferret enclosure needs feces accumulations removed - correct by 8-15-95" (CX 2 [at 3, item 7, III], #36) and the October [25, 1995, inspection] report likewise [states] that "ferret and enclosures needs feces accumulations removed. Item #36 corrected in my presence." (CX 3 [at 3, item 7, IV], #36.)

    *20 [Respondent] did not deny the accumulation of feces, but said this problem was due to [inspector] Borchert requiring her to put the ferrets in a pen with smaller screening [(Answer at 21). Respondent] said she had had no problem for years with the pen she had been using, but that the one required by [inspector] Borchert "proved impossible to keep clean" and that she ended up having to sell all her ferrets. (Answer at 21[-22].)

   Even though [Respondent] may have been in an inspector- created dilemma, Respondent's failures to remove the accumulation of feces in the ferret enclosure were violation[s] of section 3.131(a) [of the Standards (9 C.F.R. § 3.131(a))].

   18. Paragraph 1(d) of the Complaint alleges that [on June 19, 1995, Respondent] did not keep her facilities clean and in good repair, in violation of section 3.131(c) of the [S]tandards [(9 C.F.R. § 3.131(c))].

   . . . .

   [Inspector] Borchert's June [19, 1995, inspection] report [states] that:

   Alleyway of barn needs empty feed sacks cleaned up and feed barrels straightened up and covers replaced[.] Correct by 6-20-95[.]

   CX 1 [at 3, item 7, III], #37 housekeeping 3.131(c).

   [Respondent] protested in her Answer that:

   d. This is not correct - the premises was not dirty - there were empty feed sacks chicken feed, hog pellets etc. in the alleyway of the barn - it needed sweepin [sic] - water pails stacked, hatters hung up - but there was nothing that could injure an animal (besides they arn't [sic] loose in the alleyway) - The feed bags were removed and burned - I certainly can't imagine a less than perfect barn alleyway is reason for a fine. I need to stress that my petting zoo was a traveling zoo - No one came to the farm to view the animals. I didn't feel my barn had to be spotless - I'd sure like it to be but sometimes something comes up & there isn't time to do it all - I do not feel I deserve a fine for a cluttered alleyway.

   Answer at 3-4.

   [Inspector] Borchert's finding appears to be a minimal violation. Nevertheless, [Respondent's] . . . failure to keep the [premises] clean [is a violation of] section 3.131(c) [of the Standards (9 C.F.R. § 3.131(c))].

   19. Paragraph 8 of the Amended Complaint alleges that [Respondent] violated [section 16 of the Animal Welfare Act (7 U.S.C. § 2146) and] section 2.126 of the [R]egulations [(9 C.F.R. § 2.126)] by refusing an inspection of her facility on June 11, 1997 . . . .

   . . . .

   [Inspector] Borchert testified that on June 11, 1997, [Respondent] denied him and Larry Neustel, an APHIS regulatory enforcement investigator, access to her facility to conduct an inspection. He did not elaborate on the circumstances. (Tr. 19[-20].) Mr. Neustel did not testify. [FN7]

   [Respondent's] account of the incident is as follows:

   BY MR. BOMMELMAN:

   Q. Okay, in regards to R-11 dated June 11, 1997. In regards to an inspection, did you refuse the inspection when Don Borchert and Larry Neustel, I don't know if I pronounced his name right, came to your facility? Did you refuse to let those guys do an inspection?

    *21 A. I refused to let Don do the inspection because we had asked the Texas office and the Maryland office . . .

* * *

   MS. CARROLL: Objection; non-responsive. She's answered the question and he's calling for a narrative -- or she's volunteering a narrative.

   ADMINISTRATIVE LAW JUDGE: All right, I'll allow her to talk in narrative form. Go ahead, Miss Hansen.

   THE RESPONDENT: Where was I? What was the question?

   MR. BOMMELMAN: Okay, dated June 11th.

   THE RESPONDENT: Did I refuse the inspection? No. I refused the inspector. We did ask for a different inspector. We believe that a different inspector would find totally different, or much less - much less minor, cosmetic violations. We asked for a different inspector. When -- when Don and Larry came, I didn't want Don to do the inspection. I asked Larry if he would do the inspection, so did you.

   ADMINISTRATIVE LAW JUDGE: Who is Larry?

   THE RESPONDENT: Larry Neustel, he's an investigator. He was an inspector, so we felt he should be qualified. He said he could not do it because he was an investigator. I asked him if he would just go out to the kennel and look at it just for his opinion so he could see what it looked like at the present time. We've done a great deal of improvement, a lot of new material and he said he couldn't do it. I wish he would have, you know. I really wish he would have gone through it. I wish he would have been here, I would have asked him this same thing and he would have told you the same thing. When we got the witness . . .

   MS. CARROLL: Objection, Your Honor. She's speculating about testimony of somebody. I move to strike.

   ADMINISTRATIVE LAW JUDGE: Yes, it's -- you're speculating of what he might say if he were here.

   THE RESPONDENT: When we got the witness list that you would be presenting, his name was on there so we assumed that was -- you know, for sure that he'd be here. If I knew he wasn't going to be here, I would have called him as -- as my own witness. I don't know why he isn't here when he was listed on the witness sheet.

   Tr. 217-19.

   [Respondent] had also apparently encountered problems with [inspector] Borchert over a period of time. [Respondent] said [inspector Borchert] would only criticize her facility when he conducted an inspection and that "I literally get sick to my stomach when Don [Borchert] drives in because I know he's only there to find fault & never has a positive word." (Answer at first unnumbered page.)

   [Respondent] also said:

   . . . Don does not tell you where the problem areas are when he does his inspections - He just looks at everything then goes in the house and starts writing - When he hands the inspection sheet over to be signed I've learned to read it all over - then I ask him to go back outside and show me where the problem is - otherwise, I don't know[.]

   Answer at 7.

   . . . Sometimes I forget to ask [animal buyers for their phone numbers] - after all there is no space [on forms] that specifically asks for the buyer's phone number - I explained this to Don - that if USDA wanted or required the phone # they'd have a space for it - Don really lost his temper - He shook his finger at me and his voice got high and squeaky and he shouted. "I told you to put the phone number in that box and I gave you a sheet where I wrote that in!" . . . After Don lost his temper we called Maryland & told them what happened - They assurred [sic] us that USDA does not require the phone number of the buyer and that if Don spoke to me that way again that I was to gather up my papers and ask him to leave and to tell him that the inspection was over - then I was to call Maryland and Texas.

    *22 Answer at 12-13.

   [Respondent] also testified about [inspector] Borchert not wearing protective clothing on another occasion until she complained to his superiors:

   . . . He did not ever wear protective gear when he first was doing the inspection until we found out it was available. We had parvo on our place and never had a clue where it came from. After we found out he did have protective gear available, we called the Texas office and said the inspector was standing in our kennel without any protective gear. And they called him back and talked to him for quite a length of time and after that he always wore his protective gear. It's -- I think it's a real danger having him go from somebody's pet shop, somebody else's kennel. We know other inspectors that brought -- it was some chicken disease onto a place. They just inspected a chicken. . .

   Tr. 303-04.

   [Respondent] said that other dog breeders had also complained about [inspector] Bo[r]chert's inspections (RX 19).

   However, regardless of [Respondent's] reasons for objecting to [inspector] Borchert as an inspect[or], or what other animal handlers may have thought of [inspector] Borchert, he was still an APHIS official with the authority under the [Animal Welfare] Act and [the R]egulations to conduct inspections for the Secretary. [Respondent] could not refuse to allow him to conduct an inspection. [Respondent] therefore violated [section 16 of the Animal Welfare Act (7 U.S.C. § 2146) and] section 2.126 of the [R]egulations [(9 C.F.R. § 2.126)] even if she were willing to allow another APHIS official to conduct the inspection.

 

Sanction

   The Department's sanction policy, as 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), is that:

   [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.

   Section [19](b) of the Animal Welfare Act also commands, in determining the [civil penalty] to impose, that:

   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(b).

   [Respondent] contends that she corrected many of the deficiencies found at her facility and offered statements from many persons with whom she deals attesting to the condition of her facility and her animals (RX 20). Even though [Respondent] may have corrected deficiencies and even corrected them within the time period allowed by the inspector, it is the Department's policy that a [subsequent correction of a condition not in compliance with the Animal Welfare Act or the Regulations and Standards has no bearing on the fact that a violation has occurred.] In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 142 (1996).

    *23 There is no showing, however, that, despite the deficiencies found by [inspector] Borchert, [that Respondent intentionally mistreated her animals]. . . . [Inspector] Borchert also testified that [Respondent] kept her animals in "good condition" (Tr. 194).

   Considering all the circumstances, I find a penalty of $[4,3]00 is appropriate. As for a suspension of [Respondent's Animal Welfare Act] license, Complainant contends that the violations were willful and seeks a 30-day license suspension. As . . . [these] violations [were] willful, [Respondent's Animal Welfare Act] license [is] suspended for 30 days.

Findings of Fact

   1. Respondent, Judie Hansen, doing business as Wild Wind Petting Zoo, was [a class "C"] animal exhibitor licensed from 1992 to 1996 by APHIS [and currently holds a class "A" dealer license].

   2. On June 19, 1995, Respondent . . . failed to:

   a. ensure that primary enclosures for kittens had an elevated resting surface; and

   b. keep the premises clean . . . in order to protect animals from injury and to facilitate the required husbandry practices.

   [3]. On June 19[, 1995,] and August 8, 1995, Respondent . . . failed to:

   a. provide for the removal and disposal of animal . . . waste . . . so as to minimize vermin infestation, odors, and disease hazards;

   b. construct and maintain primary enclosures for rabbits so as to provide sufficient space for the animals to make normal postural adjustments with adequate freedom of movement; and

   c. keep the premises where housing facilities for dogs are located clean and . . . control weeds. . . .

   [4]. On June 19[, 1995,] and October 25, 1995, Respondent . . . failed to:

   a. store supplies of food . . . in a manner that protects the supplies from spoilage, contamination, and vermin infestation; and

   b. ensure that animal areas were free of clutter, including equipment, furniture, and stored material.

   [5]. On August 8, [1995,] and October 25, 1995, Respondent . . . failed to remove excreta from primary enclosures for ferrets as often as [necessary] to prevent contamination of the animals contained therein and to minimize disease hazards and to reduce odors.

   6. On June 19, [1995,] August 8, [1995,] and October 25, 1995, Respondent . . . failed to construct indoor and outdoor housing facilities so as to be structurally sound and maintain [indoor and outdoor facilities] in good repair, to protect animals from injury and to contain them.

   [7. On October 25, 1995, Respondent failed to:

   (a) design and construct housing facilities for dogs so as to be structurally sound and maintain the facilities in good repair, to protect animals from injury; and

   (b) provide for the regular and frequent collection, removal, and disposal of animal waste in a manner that minimizes the risk of contamination and disease.]

   [8]. On June 11, 1997, Respondent failed to allow an APHIS inspector access to her facility and records.

Conclusions of Law

    *24 Respondent . . . willfully violated [section 16 of the Animal Welfare Act (7 U.S.C. § 2146) and] the following Regulations and Standards: 9 C.F.R. §§ . . . 2.100(a), 2.126; 3.1(a), 3.1(b), 3.1(e), 3.1(f), 3.6(b), . . .3.11(c), 3.53(c), 3.125(a), 3.125(d), 3.131(a), and 3.131(c).

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

   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. [FN8] The standard of proof in administrative proceedings conducted under the Animal Welfare Act is preponderance of the evidence. [FN9] An examination of the record reveals that the ALJ found that Complainant proved 23 of the 33 violations alleged in the Complaint and the Amended Complaint. [FN10] I agree with the ALJ, except that I dismiss the three violations alleged in paragraphs 1(f) and 3 of the Complaint. Thus, I find that Complainant has proven 20 of the 33 violations alleged.

   Respondent's Appeal consists of two separately handwritten appeal documents by Greg Bommelman and Judie Hansen, respectively. The portion of Respondent's Appeal written by Mr. Bommelman is referred to as "Respondent's Appeal A"; the portion of Respondent's Appeal written by Respondent is referred to as "Respondent's Appeal B."

   Respondent's Appeal A contains 17 arguments. First, Respondent contends that the ALJ decided not upon facts, but upon hearsay (Respondent's Appeal A at 1, ¶ 1). However, an examination of the record does not reveal that the ALJ relied upon unreliable hearsay evidence or that the ALJ's decision is factually unsupported. Moreover, 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.

   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. [FN11] Moreover, responsible hearsay has long been admitted in the Department's administrative proceedings. [FN12]

   Second, Respondent argues that Respondent cannot "achieve" a decision because the ALJ is prejudiced by being employed by USDA. However, no instances of prejudicial actions by the ALJ are cited (Respondent's Appeal A at 1, ¶ 2). Due process requires an impartial tribunal, and a biased administrative law judge deprives the litigant of this impartiality. [FN13] Further, the Administrative Procedure Act requires an impartial proceeding, as follows:

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

   . . . .

   (b) There shall preside at the taking of evidence--

   (1) the agency;

   (2) one or more members of the body which comprises the agency; or

   (3) one or more administrative law judges appointed under section 3105 of this title.

   . . . The functions of presiding employees and of employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case.

   5 U.S.C. § 556(b).

   However, a substantial showing of legal bias is required to disqualify an administrative law judge or to obtain a ruling that the hearing is unfair. [FN14] The fact that the administrative law judge who presides over a hearing and issues an initial decision in the proceeding is an employee of the agency which instituted the proceeding neither disqualifies the administrative law judge nor renders the hearing unfair. Administrative law judges are employed by the agency whose actions they review. If employment by an agency constituted legal bias, as Respondent contends, administrative law judges would be forced to recuse themselves in every case.

   I have reviewed the record in this proceeding, and I find neither a basis for Respondent's allegation that the ALJ is biased or prejudiced against Respondent in this proceeding nor evidence that Respondent did not receive a fair hearing.

   Third, Respondent argues that Complainant did not call Mr. Larry Neustel, who was on Complainant's witness list, and that the ALJ failed to "read" a report by Mr. Neustel, which report Respondent argues would show Respondent "not at fault" (Respondent's Appeal A at 1, ¶ 3). A party is not required to call a person as a witness merely because that person's name appears on that party's list of anticipated witnesses. If Complainant believes that Complainant's case would not be advanced by Mr. Neustel's testimony, Complainant is not constrained to call Mr. Neustel as a witness. Moreover, the ALJ committed no error by not "reading" Mr. Neustel's report.

   Fourth, Respondent argues that the ALJ did not find a "pattern of abuse of power created" by inspector Borchert, which means to Respondent that the ALJ did not take the "Breeder Opinions" in RX 19 under advisement as the ALJ had said he would do in the hearing (Respondent's Appeal A at 1, ¶ 4). I disagree with Respondent because the ALJ did address RX 19, even though the ALJ was specific at the hearing that other breeders' opinions of inspector Borchert would be given little weight, as follows:

   Hansen said that other dog breeders had also complained about Bouchert's [sic] inspections. (RX 19.)

    *26 However, regardless of Hansen's reasons for objecting to Borchert as an inspection [sic], or what other animal handlers may have thought of Borchert, he was still an APHIS official with the authority under the Act and regulations to conduct inspections for the Secretary. She could not refuse to allow him to conduct an inspection. Hansen therefore violated section 2.126 of the regulations even if she were willing to allow another APHIS official to conduct the inspection.

   Initial Decision and Order at 21-22.

   THE RESPONDENT: It's my belief that a lot of these charges that we've been written up for would not have been written up by other inspectors and it's my attempt to find out how other inspectors do their inspecting. And I think you'd be pretty interested in our response.

   ADMINISTRATIVE LAW JUDGE: That's been marked as R-19, then. All right.

* * *

   . . . .

   THE RESPONDENT: What about these packets that we gave you?

   . . . .

   THE RESPONDENT: There are some dog breeders that have made statements in there that they said that Don said about other breeders and us. Do we have any way of refuting anything that, you know, that he...

   . . . .

   MS. CARROLL: They want to refute the hearsay.

   THE RESPONDENT: He's made comments to other people about our kennels and the condition of our animals.

   ADMINISTRATIVE LAW JUDGE: Well, that's -- that's hearsay. Even if I admit those, I'm not going to give a whole lot of weight to what was said or allegedly said in those comments because I don't think that's relevant to make a determination but whether what's specifically in the complaint today and that's what I'm concerned about and not what may have been said someplace else. It's whether there is substantial evidence to support his findings that there were violations.

   . . . .

   ADMINISTRATIVE LAW JUDGE: I understand the point you're making, yes. I understand, but that's why I'm reserving on deciding -- I'm going to look through it to see if I shall admit it or not.

   Tr. 205, 321-23.

   Fifth, Respondent claims to have a tape of a USDA attorney stating that dog breeders cannot win at a hearing (Respondent's Appeal A at 2, ¶ 5). Such a tape has no relevance to this proceeding.

   Sixth, Respondent contends that she wrote USDA a letter requesting a different inspector than inspector Borchert, but that USDA purposely sent the same inspector, so that USDA could write a violation for refusal to allow inspection (Respondent's Appeal A at 2, ¶ 6). This argument has no merit. If a dealer or exhibitor refuses to allow an APHIS official to inspect the dealer's or exhibitor's facility during business hours, then a violation of section 2.126 of the Regulations (9 C.F.R. § 2.126) has occurred, and the ALJ was correct in finding the violation.

   Seventh, Respondent argues that she proved that the inspector has poor credibility (Respondent's Appeal A at 2, ¶ 7). This argument is not supported in the record.

   Eighth, Respondent argues no dealer "can be 100% correct 100% of the time" (Respondent's Appeal A at 2, ¶ 8). However, each dealer and exhibitor is required to be in compliance with the Regulations and Standards at all times (9 C.F.R. § 2.100(a)). The fact that compliance with the Regulations and Standards may be difficult for Respondent is neither a defense nor a mitigating circumstance.

    *27 Ninth, Respondent accuses USDA of allowing USDA inspectors to engage in the character assassination of breeders (Respondent's Appeal A at 2, ¶ 9). Breeder character assassination by USDA personnel is not proven in this record, but, even if USDA inspectors engaged in character assassination, such activity would not be relevant to this proceeding.

   Tenth, Respondent argues that the testimonials from puppy buyers in RX 20 should be sufficient evidence to show that Respondent has been wrongfully accused of violations (Respondent's Appeal A at 3, ¶ 10). I disagree. The testimonials of Respondent's customers are irrelevant to Respondent's compliance with the Animal Welfare Act and the Regulations and Standards.

   Eleventh, Respondent complains that the ALJ denied Respondent's request to have a number of days equal to Complainant to file a brief (Respondent's Appeal A at 3, ¶ 11; Respondent's Appeal B at 19). The Rules of Practice do not require between parties an equal number of days within which to file a brief, but require only that each party have a "reasonable" opportunity to file a brief (7 C.F.R. § 1.142(b)). Respondent had from the close of the hearing on July 23, 1997, to November 21, 1997, to file her brief. I find that this period of time afforded Respondent a reasonable opportunity to file her brief, and I do not find error because Complainant was given a longer period of time within which to file a brief than Respondent.

   Twelfth, Respondent argues that USDA sets its own rules in the hearing to suppress Respondent's evidence and prevent the truth about USDA's inspector from revelation (Respondent's Appeal A at 3, ¶ 12). This argument has no merit. The Rules of Practice apply to all parties, including Complainant, and do not provide for the suppression of evidence.

   Thirteenth, Respondent argues that the inspector had difficulty remembering how "bad" the kennel was (Respondent's Appeal A at 3, ¶ 13). However, the inspector is not required to remember details, which may be gleaned from the inspection reports made at the time of the inspection.

   Fourteenth, Respondent argues that the "bookkeeping" violations are based upon the inspector requiring more information than is required under the Regulations (Respondent's Appeal A at 4, ¶ 14) and contends that she did not violate the recordkeeping requirements in section 2.75 of the Regulations (Respondent's Appeal B at 1-4). The Complaint alleges that Respondent willfully violated section 2.75(a) and (b) of the Regulations (9 C.F.R. § 2.75(a), (b)) by failing to make, keep, and maintain records and forms of the sale or acquisition of animals (Compl. ¶ 3). As discussed in this Decision and Order, supra, Complainant did not prove by a preponderance of the evidence that Respondent violated section 2.75 of the Regulations (9 C.F.R. § 2.75), as alleged in the Complaint, and paragraph 3 of the Complaint is dismissed.

   Fifteenth, Respondent implies that the reason for inspector Borchert's duty stations with USDA are because of the type of information in the "Breeder Reports" (Respondents Appeal A at 4, ¶ 15). The reason for inspector Borchert's duty station is not relevant to any issue in this proceeding.

    *28 Sixteenth, Respondent reiterates previous arguments that the inspector has spread rumors, has committed character assassination, and has tried to damage Respondent's business (Respondent's Appeal A, at 4, ¶ 16). The record does not support these charges as true. Moreover, even if true, such behavior by the inspector is not a defense to the allegations in the Complaint nor a mitigating circumstance.

   Seventeenth, Respondent argues that Wild Wind Kennels has "a difficult time passing any inspection, because the rules change" (Respondent's Appeal A at 5, ¶ 17). To illustrate the argument, Respondent argues that everything was fine at Respondent's pre-license inspection, but then inspector Borchert "tore off the top copy after it was signed" and wrote non- complying items on it for the next inspection (Respondent's Appeal A at 5, ¶ 17). This argument has no merit. In fact, Respondent disproves the argument, since Respondent passed the inspection prior to license. I find that an inspector's remarks on a pre-license inspection report for items to be in compliance by the next inspection cannot reasonably be construed to be a "rules change."

   Respondent's Appeal B contains 21 arguments which are not raised in Respondent's Appeal A. First, Respondent denies that she violated section 3.1(a) of the Standards (9 C.F.R. § 3.1(a)) by having sharp points and exposed wire on dog runs, as alleged in paragraph 4(c) of the Complaint (Respondent's Appeal B at 4- 5). Respondent argues that the sharp points were "blunt cut with a wire cutter - the long points were left on purpose - they were pushed into the dirt to hold the wire in place while the gravel was shoveled over it" (Respondent's Appeal B at 4-5). I infer that Respondent's point is that there was a repair job in progress which would have buried the exposed wire and sharp points safely under gravel. However, I find that Respondent has admitted the violation. The violation occurred when the dogs were exposed to the hazard of the sharp pointed wire. Moreover, Respondent does not explain how "blunt cut" wire would not continue to be a dangerous, flesh-penetrating hazard, even when not sharpened into points. Further, Respondent does not explain how the burial of the wire points would protect dogs who dig, if the reason for the repair job was to counter digging dogs: "I was repairing a place where dogs could have dug under the fence" (Respondent's Appeal B at 5 (emphasis in original)). Therefore, I reject Respondent's argument.

   However, paragraph 4(c) of the Complaint alleges that the violation of section 3.1(a) of the Standards (9 C.F.R. § 3.1(a)) occurred on both June 19, 1995, and on October 25, 1995. The ALJ referenced only the evidence from the October 25, 1995, inspection report (Initial Decision and Order at 6). Inspector Borchert's June 19, 1995, inspection report (CX 2) does not provide any evidence that Respondent violated section 3.1(a) of the Standards (9 C.F.R. § 3.1(a)) on June 19, 1995. Therefore, Complainant has proven only one of the two violations of section 3.1(a) of the Standards (9 C.F.R. § 3.1(a)) alleged in paragraph 4(c) of the Complaint.

    *29 Second, Respondent denies that she violated section 3.1(b) of the Standards (9 C.F.R. § 3.1(b)), as alleged in paragraph 4(b) of the Complaint (Respondent's Appeal B at 5). Although Respondent admits to having "various items" in the housing area for dogs, Respondent argues that the kennel was being built in a former machinery repair shop and that the items still there could not be put out in the weather, but that Respondent still did nothing "to violate the dogs health and safety" (Respondent's Appeal B at 5). However, Respondent fails to state how having equipment and stored materials in the housing facilities does not violate the prohibition in section 3.1(b) of the Standards (9 C.F.R. § 3.1(b)) against having "equipment" and "stored materials" in the housing facilities. Respondent's argument is rejected.

   Third, Respondent denies that she violated section 3.1(e) of the Standards (9 C.F.R. § 3.1(e)), as alleged in paragraph 4(a) of the Complaint (Respondent's Appeal B at 5). Respondent argues that the feed was placed on pallets away from the wall on the advice of inspector Borchert. Respondent admits that the feed was on top of the enclosures in the animal area, but argues that she was unaware that that constituted a violation. When Respondent learned it was a violation, Respondent states that it was corrected the next day (Respondent's Appeal B at 5). Respondent admits to having bleach and open food containers not properly stored. Respondent argues that the bleach was diluted and the food sack was a bag containing a small amount of feed which would not fit in a plastic storage container (Respondent's Appeal B at 6). Since Respondent admits the violations, and because the excuses offered do not exculpate Respondent's violations, I affirm the ALJ's conclusion that Respondent violated section 3.1(e) of the Standards (9 C.F.R. § 3.1(e)), as alleged in paragraph 4(a) of the Complaint.

   Fourth, Respondent denies that she violated section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)), as alleged in paragraph 6(a) of the Complaint (Respondent's Appeal B at 6-7). Although Respondent admits that the pail of feces did not have a lid on it at the time of the October 25, 1995, inspection, Respondent argues that her employee was cleaning pens at the time of the inspection. The ALJ found that the open pail of feces was caused by the inspection and constituted a "technical" violation (Initial Decision and Order at 9). Under the circumstances, I find this violation to be minor and neither the civil penalty assessed against Respondent nor the suspension of Respondent's Animal Welfare Act license is based upon this violation of section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)). As discussed in this Decision and Order, supra, neither the ALJ nor I found that Respondent violated section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)) on August 8, 1995, as alleged in paragraph 6(a) of the Complaint.

   Fifth, Respondent denies that she violated section 3.6(b) of the Standards (9 C.F.R. § 3.6(b)), as alleged in paragraph 1(b) of the Complaint (Respondent's Appeal B at 7-8). Respondent admits that she did not know of the elevated surface requirement in the Standards (Answer at 2). However, Respondent argues that the kittens were in a traveling enclosure, which has no shelf, and is not required to have a shelf, but that the Complaint charges her with housing the kittens in a primary enclosure, which must have an elevated resting surface.

    *30 This record does not reveal that inspector Borchert drew a distinction between primary enclosures for cats, regulated under section 3.6(b)(4) of the Standards (9 C.F.R. § 3.6(b)(4)), requiring elevated resting surfaces and mobile or traveling housing facilities for cats, regulated under sections 3.5 and 3.14 of the Standards (9 C.F.R. §§ 3.5, .14), which have no requirement for elevated resting surfaces (CX 1 at 2, item 7, III, #30; Tr. 68- 69). I infer that inspector Borchert meant primary enclosures, rather than mobile or traveling housing facilities, because the Complaint charges Respondent that way (Compl. ¶ 1(b)) and because the context of inspector Borchert's testimony (Tr. 68-69) indicates that Complainant and the ALJ understood the charge to be for primary enclosures.

   The evidence is that Respondent obtained these kittens from a neighbor for adoption and that the kittens were adopted the "next day." I conclude that Respondent did not transport the kittens anywhere and that Respondent committed a violation by housing kittens in a traveling enclosure used as a primary enclosure, without an elevated resting surface. Nonetheless, based on the short duration of this violation, neither the civil penalty assessed against Respondent nor the suspension of Respondent's Animal Welfare Act license is based on this violation of section 3.6(b) of the Standards (9 C.F.R. § 3.6(b)).

   Sixth, Respondent denies that she violated section 3.11(a) of the Standards (9 C.F.R. § 3.11(a)), as alleged in paragraph 1(f) of the Complaint (Respondent's Appeal B at 8). I find that Complainant did not prove the violation of 9 C.F.R. § 3.11(a) alleged in paragraph 1(f) of the Complaint by a preponderance of the evidence. First, while CX 1 at 3, item 7, III, #36, which is the basis for the allegation in paragraph 1(f) of the Complaint, provides some evidence that Respondent violated 9 C.F.R. § 3.11(a), it is not clear. Second, as stated in this Decision and Order, supra, Respondent rebutted Complainant's evidence.

   Seventh, Respondent denies that she violated section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)), as alleged in paragraph 2(d) of the Complaint (Respondent's Appeal B at 8-9). However, Respondent nevertheless admits the charge from the June 19, 1995, inspection report (CX 1 at 3, item 7, III, #37), when she states that "2 or 3 pallets were stood on end off the ground on a metal shelf at the end of a van body - they were stored neatly - and were not a violation of 3.11(c)" (Respondent's Appeal B at 8). Also, Respondent admits to having "pig weeds" at the east end of her house (Tr. 162), as alleged in the August 8, 1995, inspection report (CX 2 at 2, item 7, III, #37), but argues that the particular weeds in question are such that no vermin could hide there (Respondent's Appeal B at 9). Therefore, I conclude that Respondent admits to the facts supporting the violations of section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)), even though Respondent disagrees that these facts should constitute violations. I agree with the ALJ that these facts constitute violations of section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)).

    *31 Eighth, Respondent denies that she violated section 3.53(c) of the Standards (9 C.F.R. § 3.53(c)), as alleged in paragraph 2(c) of the Complaint (Respondent's Appeal B at 9). Respondent once again argues, as Respondent did before the ALJ, that the rabbits cited by inspector Borchert as being housed in insufficient space were actually "meat" rabbits not subject to regulation under the Animal Welfare Act (Respondent's Appeal B at 9).

   However, I agree with the ALJ that there was nothing at the kennel to distinguish breeding rabbits or exhibition rabbits from "meat" rabbits (Initial Decision and Order at 15). Therefore, the ALJ's decision finding the violation of section 3.53(c) of the Standards (9 C.F.R. § 3.53(c)), as alleged in paragraph 2(c) of the Complaint, is affirmed.

   Ninth, Respondent denies that she violated section 3.125(a) of the Standards (9 C.F.R. § 3.125(a)), as alleged in paragraph 7 of the Complaint, concerning the cougar's housing facilities and primary enclosure, on June 19, 1995, and August 8, 1995 (Respondent's Appeal B at 10). Respondent argues that her facilities were in good repair and did protect the cougar from injury and contain the cougar; that there is no possibility that the cougar could escape; that the cougar was chained to keep the cougar several feet from the back door of the school bus; that the door was only open when Respondent was actually nearby and interacting with the cougar; that the door was otherwise always closed and locked; and that inspector Borchert's report that the door was left open is incorrect (Respondent's Appeal B at 10).

   Inspector Borchert provided photographs documenting his conclusions that the lack of a perimeter fence and the open door to the school bus housing the cougar means that humans or animals could move right up to the cougar, possibly endangering the cougar (CX 19, 20, and 21). Respondent's arguments that the structure is sufficient to protect the cougar from injury and contain the cougar are not supported by the evidence.

   Tenth, Respondent denies that she violated section 3.125(a) of the Standards (9 C.F.R. § 3.125(a)), as alleged in paragraph 7 of the Complaint, concerning the ferrets' facility on June 19, 1995, and October 25, 1995 (CX 1 at 2, item 7, III, #10; CX 3 at 2, item 7, III, #10) (Respondent's Appeal B at 10). Respondent argues that the exposed "ends of brads (small nails) did not constitute and [sic] danger of injury to the ferrets" (Respondent's Appeal B at 10 (emphasis in original)). Thus, Respondent admits to having protruding small nails in the ferret cage. Respondent's argument that the small nails could not cause injury to the ferrets is not credible. Respondent's argument is rejected.

   Eleventh, Respondent denies that she violated section 3.125(d) of the Standards (9 C.F.R. § 3.125(d)), as alleged in paragraph 2(b) of the Complaint, concerning the manure pile on June 19, 1995, and August 8, 1995 (Respondent's Appeal B at 10-11). Respondent argues that collecting the animal and food wastes and bedding and composting this material in a pile (CX 17) at the kennel constitutes compliance with the "[d]isposal facilities" requirements of section 3.125(d) of the Standards (9 C.F.R. § 3.125(d)).

    *32 However, I agree with the ALJ that heaping manure in a pile, with corral straw and bedding, next to the kennel, to allow the natural decomposition process to occur, is not "removal and disposal" as contemplated by the Standards.

   Twelfth, Respondent denies that she violated section 3.131(a) of the Standards (9 C.F.R. § 3.131(a)) on August 8, 1995, and October 25, 1995, as alleged in paragraph 6(b) of the Complaint, concerning feces accumulation in the ferret enclosure (Respondent's Appeal B at 12). Respondent does not deny the accumulation of feces in the ferret enclosure, but argues that the amount was not enough to contaminate the animals. Respondent's main point is that ferrets only foul one corner of the pen and the pertinent pen was large enough to let feces accumulate without contaminating the animals, in violation of section 3.131(a) of the Standards (9 C.F.R. § 3.131(a)). (Respondent's Appeal B at 12.) However, regardless of the habits of ferrets to isolate their feces, Respondent is also required to clean the primary enclosure of the ferrets often enough to "minimize disease hazards and to reduce odors" (9 C.F.R. § 3.131(a)). I affirm the ALJ's conclusion that Respondent violated 9 C.F.R. § 3.131(a) on August 8, 1995, and October 25, 1995.

   Thirteenth, Respondent denies that she violated section 3.131(c) of the Standards (9 C.F.R. § 3.131(c)), as alleged in paragraph 1(d) of the Complaint (Respondent's Appeal B at 12-13). Respondent does not argue that she did not keep the barn alleyway free of empty feed sacks, but argues that nothing in the alleyway could injure the animals. However, section 3.131(c) of the Standards (9 C.F.R. § 3.131(c)) requires that the premises must be kept clean to not only protect animals, but also facilitate prescribed husbandry practices. Respondent admits she failed to keep the premises clean and her description of the manner in which she kept the barn (Answer at 3-4) indicates that, at a minimum, the barn was not sufficiently clean to facilitate prescribed husbandry practices. Therefore, Respondent's argument is rejected.

   Fourteenth, Respondent does not deny that she violated section 2.126 of the Standards (9 C.F.R. § 2.126), as alleged in paragraph 8 of the Amended Complaint (Respondent's Appeal B at 13). Respondent argues, however, that her refusal to allow inspection is justified because: the agency was trying to get a "refusal" on Respondent's record; inspector Borchert and the "Texas office" knew that Respondent had "repeatedly" asked for a new inspector; Respondent cannot go along with an inspector who has said he is "out to get us" and who "wants to shut us down"; Respondent is being fined for having the courage to "stand up to" unfair and exaggerated violations; Respondent believes a different inspector would not "write [Respondent] up" for the same things as inspector Borchert; and Respondent asked Larry Neustel to inspect on June 11, 1997, but Mr. Neustel said he could not (Respondent's Appeal B at 13).

    *33 I have carefully examined all of Respondent's justifications for refusing to allow an APHIS inspector to inspect her premises. However, Respondent has not advanced any arguments which justify or mitigate Respondent's violation of section 2.126 of the Standards (9 C.F.R. § 2.126). Respondent may not choose her inspector. The Regulations state that "[e]ach dealer [or] exhibitor . . . shall, during business hours, allow APHIS officials . . ." to examine records required to be kept by the Animal Welfare Act and the Regulations and to inspect the facilities, property, and animals (9 C.F.R. § 2.126). Therefore, I find Respondent's arguments irrelevant to the question whether she refused to allow an APHIS official access, during business hours, to her regulated kennel. I reject Respondent's arguments.

   Fifteenth, Respondent makes a large number of disparaging accusations against inspector Borchert and references the "breeder opinions" survey in RX 19 (Respondent's Appeal B at 13- 15). However, inspector Borchert's performance and the survey of breeder opinion on inspector Borchert in RX 19 have already been addressed in response to Respondent's fourth argument in Respondent's Appeal A in this Decision and Order, supra. It bears repeating that an inspector is only an evidence gatherer. The inspector has no authority to find that anyone violated the Animal Welfare Act or the Regulations and Standards, but merely presents evidence, first to the agency and the agency's counsel, and then before an administrative law judge. If the allegations in the Complaint are not supported by a preponderance of the evidence, then the allegations in the Complaint suffering lack of evidentiary support will be dismissed. Therefore, I find that Respondent's allegations against the inspector are irrelevant to whether Respondent committed the violations in the Complaint.

   Sixteenth, Respondent argues that the ALJ pointed out in the decision (Initial Decision and Order at 22-23) that Respondent provided overall humane care to her animals and that Respondent's animals were kept in good condition (Respondent's Appeal B at 15-16). Respondent argues that the "bottom line" is that she has a good vaccination and de-worming program, that her animals are healthy, and that her animals have never been found to be injured, mistreated, unhealthy, crowded, or dirty (Respondent's Appeal B at 16). There is no evidence that Respondent intentionally mistreated her animals. Moreover, the evidence supports a finding that Respondent's animals were in "good condition" (Tr. 194). When assessing a civil penalty, the gravity of the violation must be taken into account (7 U.S.C. § 2149(b)), and I have taken into account the condition of Respondent's animals when determining the amount of the civil penalty to be assessed.

   Seventeenth, Respondent argues that the $3,000 civil penalty assessed against Respondent by the ALJ is what a $30,000 civil penalty would be like to other people (Respondent's Appeal B at 15). Respondent argues that all income at the kennel goes back into the kennel and that income is so small that a time payment of a large civil penalty would not be realistic (Respondent's Appeal B at 16). As discussed in this Decision and Order, infra, a respondent's ability to pay a civil penalty is not considered in determining the amount of the civil penalty to be assessed.

    *34 Eighteenth, Respondent denies that any violations were willful, because she "did not ever deliberately commit an act with the intention to ignore rules or standards" (Respondent's Appeal B at 16). However, I agree with the ALJ (Initial Decision and Order at 23) that Respondent's violations are willful, as explained in this Decision and Order, infra.

   Nineteenth, Respondent questions what a 30-day suspension would mean to her business operations (Respondent's Appeal B at 16-18).

   Complainant contends that Respondent has been informed of the effects of a 30- day suspension of Respondent's Animal Welfare Act license and provides a letter dated March 20, 1998, from opposing counsel to Respondent which purports to answer the questions on the 30-day suspension raised by Respondent (Complainant's Response at 33, Attach. A).

   Twentieth, Respondent accuses opposing counsel of saying Respondent admitted things not admitted by Respondent (Respondent's Appeal B at 18-19). However, the Judicial Officer will not accept that the Respondent admitted something, unless the Complainant points to the place in the record where that purported admission is located, and the admission is actually there.

   Finally, Respondent argues that there cannot be a decision in Respondent's favor because the inspector, the attorney, and the ALJ all work for USDA (Respondent's Appeal B at 20). Respondent's complaint is meritless. An agency may combine investigative, adversarial, and adjudicative functions, as long as an employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case, does not participate in or advise in the decision or agency review in the case or a factually related case. (5 U.S.C. § 554(d).) [FN15] Respondent makes no assertion that any USDA employee or agent engaged in the performance of investigative or prosecuting functions in this proceeding, participated in or advised in the ALJ's Initial Decision and Order or the agency review of the ALJ's Initial Decision and Order.

Complainant's Response and Cross-Appeal

   Complainant's Response to Respondent's Appeal contains eight arguments in the nature of a cross-appeal, in which Complainant appeals the ALJ's sanction and all seven paragraphs of the Complaint wherein the ALJ found no violations (Complainant's Response and Cross-Appeal at 7-8, 16-18, 20-21, 24, 27, 33-35). Respondent's response to Complainant's Response to Respondent's Appeal consists of two separate handwritten responses by Greg Bommelman and Judie Hansen, respectively. The portion of Respondent's response to Complainant's Response to Respondent's Appeal written by Respondent is referred to as Respondent's Response A and the portion of Respondent's response written by Mr. Bommelman is referred to as Respondent's Response B.

   Complainant contends that Respondent's Appeal is untimely, in that Respondent's Appeal was due on March 20, 1998, but Respondent's Appeal was not filed until March 24, 1998 (Complainant's Response and Cross-Appeal at 2-3). Respondent contends that Respondent's Appeal was "mailed well in advance" of the date it was due, but due to a blizzard and road conditions, it was late. Respondent further states that she believed Respondent's Appeal could be deemed to be filed on the date the envelope containing Respondent's Appeal was postmarked. (Respondent's Response A at 1; Respondent's Response B at 2.)

    *35 Section 1.145(a) of the Rules of Practice provides that an appeal petition must be filed with the Hearing Clerk within 30 days after receiving service of the Judge's decision. The Respondent's mailing of the Respondent's Appeal prior to the due date of the appeal petition is not "filing with the Hearing Clerk" and Respondent's Appeal Petition, which was filed with the Hearing Clerk after the date it was due, is untimely as Complainant contends.

   Complainant's Response and Cross-Appeal is timely. Moreover, Respondent filed a timely reply to Complainant's Response and Cross-Appeal and properly incorporated by reference Respondent's untimely original appeal. Therefore, Respondent's untimely original appeal was resuscitated, because the Rules of Practice allow "any relevant issue" to be raised in response to an appeal (7 C.F.R. § 1.145(b)). [FN16]

   First, Complainant contends that the ALJ erred by not finding the violation of section 2.50(c) of the Regulations (9 C.F.R. § 2.50(c)) alleged in paragraph 5 of the Complaint (Complainant's Response and Cross-Appeal at 7-8). The ALJ found, with respect to paragraph 5 of the Complaint, that section 2.50(d) of the Regulations (9 C.F.R. § 2.50(d)) exempts unweaned puppies from the identification requirement in section 2.50(c) of the Regulations and that the record does not show that the puppies in question were weaned and thereby required to be identified. Complainant has failed to meet its burden of proving that Respondent failed to identify her dogs, in violation of section 2.50(c) of the Regulations (9 C.F.R. § 2.50(c)) (Initial Decision and Order at 3-5).

   Complainant argues that the puppies are not exempt under 9 C.F.R. § 2.50(d) because the evidence supports a finding that the puppies were weaned and were not maintained as a litter with their dam in the same primary enclosure (Complainant's Response and Cross-Appeal at 7). As evidence, Complainant argues that Respondent testified that Respondent had prepared ID tags for the puppies and it "stands to reason" that Respondent would not have individually identified unweaned members of a litter kept with the mother that Respondent did not have to identify individually; that inspector Borchert stated that the unidentified dogs were held back from sale for breeding purposes, which "suggests" that the litter was of marketable age, but unweaned puppies are not marketable; that inspector Borchert stated that some animals had been removed from the litter, which "suggests" that the litter was not intact as the exemption requires; and, that even if the dogs were unweaned, Respondent let the animals sleep on Respondent's bed, which "means" that the puppies were not maintained as a litter with their dam in the same primary enclosure, which the exemption requires (Complainant's Response and Cross-Appeal at 8).

   Respondent contends that inspector Borchert never inspected any dogs to determine if they had tags or tattoos (Respondent's Response B at 4). However, I find that the record clearly indicates that inspector Borchert did find that new dogs and puppies were not identified (CX 3 at 2, item 7, III, #45) and that their identification numbers were listed on a card on their pen (Respondent's Response A at 4). Respondent also contends that there were only three puppies involved. However, the number of puppies involved is not a defense to a violation of section 2.50(c) of the Standards.

    *36 I reject Complainant's argument because it is speculative. Complainant uses terms like "stands to reason" and "suggests," and it appears that Complainant relies not on facts evidenced in the record, but rather Complainant's interpretation of facts evidenced by the record.

   Second, Complainant argues that the ALJ erred by not finding the August 8, 1995, violation of section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)), concerning soiled newspapers, alleged in paragraph 6(a) of the Complaint (Complainant's Response and Cross-Appeal at 16-18). The ALJ found, with respect to paragraph 6(a) of the Complaint, that the soiled newspapers did not constitute a violation, as they occurred as part of the regular cleaning of the facility (Initial Decision and Order at 9).

   Complainant argues that the presence of the soiled newspapers did represent a violation. Inspector Borchert noted two distinct categories of newspapers: old, soiled newspapers and soiled newspapers. Complainant argues that distinguishing one group as "old" soiled newspapers indicates that they had been in the animal area for longer than 5 minutes, thus, violating the Standard for frequent removal of waste (Complainant's Response and Cross-Appeal at 16-17). Respondent responds that all of the newspapers were being gathered to be placed in trash containers, were not in the animal enclosures, and were placed in trash containers within 5 minutes after having been collected (Respondent's Response A at 5-6; Respondent's Response B at 6).

   Since all the soiled newspapers were outside the enclosure, I infer that Complainant is arguing that the "sack of old" newspapers had already been there for longer than 5 minutes, when the other papers were put on the ground. Although Complainant's interpretation is one way to look at the evidence, it is just as likely that the two sets of soiled newspapers were generated during the same cleaning. Perhaps, inspector Borchert was only distinguishing between papers still on the ground and those papers already bagged for disposal. However, the evidence does not support either scenario. I find the Complainant's argument speculative, in that it interprets the evidence rather than providing the requisite preponderance of the evidence that the "old" soiled newspapers were put there at a time prior to the rest of the soiled newspapers.

   Third, also concerning paragraph 6(a) of the Complaint, Complainant argues that the ALJ's characterization of Respondent's leaving the cover off the pail of feces as merely a "technical" violation of section 3.1(f) of the Standards, is error (Complainant's Response and Cross-Appeal at 16-18).

   I disagree with Complainant. I infer that the ALJ meant that Respondent met the technical requirements for a violation of 9 C.F.R. § 3.1(f), but that the violation was de minimis. I agree with the ALJ that the pail was left uncovered, which constitutes a violation, but I find the circumstances such that I am not assessing a civil penalty or suspending Respondent's Animal Welfare Act license for this violation.

    *37 Fourth, Complainant argues that the ALJ erred by not finding that on June 19, 1995, and August 8, 1995, Respondent failed to ensure that the floors and walls of indoor housing facilities were impervious to moisture, as required by sections 3.2(d) and 3.3(e) of the Standards (9 C.F.R. §§ 3.2(d), .3(e)), as alleged in paragraph 2(a) of the Complaint. The ALJ found that inspector Borchert said that the only way to test the surface to determine if it is impervious to moisture is by spraying it with water and that he did not spray water on the surface. Inspector Borchert did not explain how he determined the surfaces were not impervious to moisture and under these circumstances, the ALJ found that Complainant had not met its burden of proving Respondent violated sections 3.2(d) and 3.3(e) of the Standards (9 C.F.R. §§ 3.2(d), .3(e)) (Tr. 119-20, 194; Initial Decision and Order at 9- 10).

   The gravamen of Complainant's argument is that "[i]t is axiomatic that in order to be sealed, a surface must be of sufficient uniformity so that the sealant can adhere to it" (Complainant's Response and Cross-Appeal at 20). The rest of Complainant's argument implies that to achieve compliance with the Standards all "surfaces to be covered be sanded and free from dirt and loose paint" (Complainant's Response and Cross-Appeal at 20). Respondent responds that she did paint or put water sealer on everything that was required to be sealed (Respondent's Response A at 6-7). Further, Respondent notes that inspector Borchert never properly tested the surfaces to determine whether they were in fact impervious to moisture (Respondent's Response B at 3).

   I reject Complainant's argument because the Standard has no requirement that surfaces to be sealed must be sanded and free from dirt and loose paint.

   Moreover, Complainant cites no authority for the axiom on surface uniformity. I agree with the ALJ that inspector Borchert could not have determined imperviousness to moisture by only looking at the surfaces, and inspector Borchert testified that the only test for imperviousness is to spray water, which inspector Borchert testified he did not do (Tr. 194).

   Fifth, Complainant argues that the ALJ erred by not finding the violation of section 3.4(b) of the Standards (9 C.F.R. § 3.4(b)) alleged in paragraph 1(a) of the Complaint.

   Paragraph 1(a) of the Complaint alleges that Respondent failed to provide outdoor housing facilities for dogs that are large enough to allow each animal to sit, stand, lie in a normal manner, and turn about freely, in violation of section 3.4(b) of the Standards (9 C.F.R. § 3.4(b)).

   Section 3.4(b) of the Standards requires that each outdoor facility include one or more shelter structures that are large enough to allow each animal in the shelter to sit, stand, lie in a normal manner, and turn about freely. Complainant did not prove that the shelter structures were not large enough to allow each animal in the shelter to sit, stand, lie in a normal manner, and turn about freely.

    *38 Sixth, Complainant argues that the ALJ erred by not finding the violation of section 3.9(b) of the Standards (9 C.F.R. § 3.9(b)), concerning failure to keep non-disposable food receptacles clean and sanitized, as alleged in paragraph 1(c) of the Complaint (Complainant's Response and Cross-Appeal at 23-24). The ALJ found, with respect to paragraph 1(c) of the Complaint, based on Respondent's Answer and testimony, that inspector Borchert was not referring to a food utensil, but to a water receptacle which, in any event, was not dirty, but which had mineral deposits caused by hard water (Initial Decision and Order at 11).

   Complainant makes the following arguments:

   First, the ALJ erred in failing to find a violation. In his inspection report, [inspector] Borchert specified that the violation was due to "dirty food receptacles." This means that the receptacles were not for water, but for food, and that there were more than one.

   Second, [Respondent] is required to sanitize food and water receptacles. To sanitize means to "make physically clean and to remove and destroy, to the maximum degree that is practical, agents injurious to health." [(Footnote omitted). Respondent's] receptacles were not sanitized.

   Complainant's Response and Cross-Appeal at 24.

   The ALJ did not err in crediting the testimony of Respondent that the receptacle in question was a water, and not a food, receptacle, and not finding a violation. Respondent's Answer informed Complainant that Respondent's defense to the charge of a dirty dog bowl would be that the bowl in question was an old water pail with lime deposits from the local hard water (Answer at 3c). Respondent testified to this same set of facts at the hearing (Tr. 282-83). (Respondent reiterates this position in Respondent's Response A at 7; Respondent's Response B at 7.) Complainant could have refuted the facts from Respondent's Answer and testimony, but did not; leaving only the terse statement from inspector Borchert's report: "[d]irty feed receptacles must be kept clean[.] Correct by 6-20-95[.]" (CX 1 at 3, item 7, III, #34.)

   Therefore, Complainant has not shown by a preponderance of the evidence that the receptacle in question was a food receptacle.

   Seventh, Complainant seemingly argues that the ALJ erred by not finding the violation of section 3.11(d) of the Standards (9 C.F.R. § 3.11(d)), concerning failure to control pests, as alleged in paragraph 1(e) of the Complaint (Complainant's Response and Cross-Appeal at 27). The ALJ found, with respect to paragraph 1(e) of the Complaint, as follows:

   13. Paragraph 1.e. of the Complaint alleges that [on June 19, 1995, Respondent] failed to maintain an effective pest control program as required by section 3.11(d) of the [S]tandards. . . .

   . . . .

   [Respondent] said that this was the only occasion when there were a "lot of flies" during an inspection. She said she promptly removed the dogs and sprayed the enclosure with a kennel-approved spray she kept in the enclosure. She said she also uses baits and traps and has turkeys to eat flies and bugs.

    *39 An "effective" program under section 3.11(d) [of the Standards (9 C.F.R. § 3.11(d))] does not require the complete elimination of pests such as flies, which is probably impossible to achieve, but a program to "reduce" contamination by pests. The appearance of flies on only one occasion does not necessarily establish that [Respondent] lacked an effective pest control program. The action she took also reflects the maintenance of such a program. [Respondent] did not violate section 3.11(d) [of the Standards (9 C.F.R. § 3.11(d))].

   Initial Decision and Order at 13-14.

   Complainant seemingly argues that the ALJ erred, as follows:

   The Standards require that licensees establish effective pest control measures [footnote omitted. Inspector] Borchert inspected [Respondent's] facility on June 19, 1995, and noted the presence of an inordinate number of flies [(footnote omitted). Respondent] admits this, but notes that she sprayed and corrected the problem. The ALJ found no violation because "[t]he presence of flies on only one occasion does not necessarily establish that [Respondent] lacked an effective pest control program [footnote omitted].

   Complainant's Response and Cross-Appeal at 27.

   My examination of Complainant's "argument" reveals that Complainant describes the ALJ's actions, but Complainant does not actually argue that the ALJ committed error; therefore, Complainant's "argument" is rejected.

   Finally, Complainant appeals the ALJ's sanction, reiterating Complainant's recommendation that Respondent be issued a cease and desist order, assessed an $8,000 civil penalty, and suspended for 30 days, and continuing thereafter, until Respondent is in compliance with the Animal Welfare Act and the Regulations and Standards, and has paid the civil penalty (Complainant's Response and Cross-Appeal at 34-35). Complainant argues in support of its recommended sanction that Respondent has the size business for such a sanction; that Respondent lacks good faith; that Respondent refused inspection; that Respondent denies her acts were willful; that Respondent made personal attacks on the inspector; and that Respondent regularly fails to comport with the Animal Welfare Act and the Regulations and Standards, while blaming zealous inspectors and difficult requirements for her failures (Complainant's Response and Cross-Appeal at 33-34). Respondent responds that she has done nothing to warrant a fine, that she is being punished for exercising her right to a hearing, and that the good condition of her animals should be taken into consideration (Respondent's Response A at 9-11). Complainant's arguments are addressed in this Decision and Order, infra, in my discussion of the sanction.

Respondent's Reply to Complainant's Cross-Appeal

   Respondent's Response contains a number of contentions that were raised in Respondent's Appeal, which I fully addressed in this Decision and Order, supra, and which I do not reiterate here. Further, in addition to responses to arguments raised by Complainant in Complainant's Response and Cross-Appeal, Respondent raises five new issues. First, Respondent contends that she is entitled to a jury trial in the county in which the alleged violations occurred and asks whether this proceeding is civil or criminal (Respondent's Response B at 2-3). This proceeding is not a criminal prosecution and the constitutional provisions in Article III, § 2 of the United States Constitution and the Sixth Amendment to the United States Constitution, which afford the right to a jury trial in criminal proceedings, are not applicable to this proceeding. [FN17] The Seventh Amendment to the United States Constitution provides:

    *40 In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.

   U.S. Const. amend. VII.

   Courts have long construed the phrase "Suits at common law" as referring to cases analogous to those tried prior to the adoption of the Seventh Amendment in courts of law in which jury trial was customary. [FN18] Congress is free to create new statutory public rights, as it did with the enactment of the Animal Welfare Act, and assign their adjudication to an administrative agency before which a litigant has no right to a jury trial, without violating the Seventh Amendment's requirement that a jury trial is to be preserved in suits at common law. [FN19] Thus, I conclude that the Seventh Amendment to the United States Constitution does not entitle Respondent to a jury trial in this administrative proceeding.

   Moreover, Respondent has no right under the Administrative Procedure Act to have the hearing conducted in the county in which the alleged violations occurred. The Administrative Procedure Act merely provides, with respect to the location of the hearing, as follows:

   § 554. Adjudications

   . . . .

   (b) Persons entitled to notice of an agency hearing shall be timely informed of--

   (1) the time, place, and nature of the hearing[.]

   . . . .

   . . . In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.

   5 U.S.C. § 554(b).

   In any event, the record establishes that Respondent's residence and licensed facility are located in Donnybrook, North Dakota, and that all of the alleged violations at issue in this proceeding occurred in Donnybrook, North Dakota. The hearing in this proceeding was conducted in Minot, North Dakota, and both Donnybrook and Minot are located in Ward County, North Dakota. Respondent did not move for a change of venue, and I do not find that conducting the hearing in this proceeding in Minot, North Dakota, violated Respondent's right to due process or the requirement under the Administrative Procedure Act that the location of the hearing be chosen with due regard for the convenience and necessity of the parties or their representatives. [FN20]

   Second, Respondent contends that she has made a Freedom of Information Act request for a report concerning her facility prepared by Mr. Larry Neustel and that the "USDA Central Sector (Dr. Walt Christenson) has stated that no FOIA information will be released to Ms. Hansen until this case is settled" (Respondent's Response B at 3-4 (emphasis in original)).

   The Freedom of Information Act (5 U.S.C. § 552) requires each federal agency to make its non-exempt records available, upon request, to a requester. If a request is denied, an aggrieved party may file a complaint in the district court of the United States in which the aggrieved party resides, or has a principal place of business, or in which the agency records are situated, or in the District of Columbia, which court has jurisdiction to enjoin the agency from withholding agency records and order production of agency records improperly withheld. Thus, the exclusive forum for correcting any improper denial of Respondent's Freedom of Information Act request is a district court of the United States.

    *41 Third, Respondent argues that Ms. Carroll's license [FN21] should be suspended until she is in full compliance with the oath she has taken and that Ms. Carroll should be assessed a civil penalty of $250,000 for representing an individual who lied under oath and for trying to obtain money through deception (Respondent's Response B at 8). Respondent does not indicate the nature of the oath that Ms. Carroll has taken; the Complainant, the person who Ms. Carroll represents in this proceeding, did not testify in this proceeding; and there is no evidence that Ms. Carroll tried to obtain money through deception. Further, even if I found that Ms. Carroll violated an oath, represented a perjurer, and attempted to obtain money by deception (which I do not find), I have no jurisdiction to suspend Ms. Carroll's license to practice law or to assess Ms. Carroll a civil penalty either for representing persons who lie under oath or for attempting to obtain money through deception.

   Fourth, Respondent contends that Ms. Carroll must be practicing law for a foreign power. Respondent cites as support for her contention that Ms. Carroll must be practicing law for a foreign power, Ms. Carroll's use of the title "Esquire" in reference to herself (Respondent's Response B at 9). However, while the word "esquire" is used in various ways, [FN22] in the United States, the title "Esquire" is frequently appended after the name of an attorney, [FN23] and the title "Esquire" does not indicate that the attorney, after whose name the title is appended, is practicing law for a foreign power. Moreover, the record is clear that Ms. Carroll represents Complainant in Complainant's official capacity as an employee of the United States.

   Fifth, Respondent asserts that "the House subcommittee on government management . . . gave the USDA a rating of D" (Respondent's Response B at 9). Respondent does not indicate the relevance of this asserted rating to the issues in this proceeding.

Sanction

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

   § 2149. Violations by licensees

   (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 license, 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

    *42 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):

   [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.

   The recommendations of administrative officials charged with the responsibility for achieving the congressional purpose of the regulatory statute are highly relevant to any sanction to be imposed and are entitled to great weight in view of the experience gained by administrative officials during their day- to-day supervision of the regulated industry. In re S.S. Farms Linn County, Inc., supra, 50 Agric. Dec. at 497. However, the recommendation of administrative officials as to the sanction is not controlling, and in appropriate circumstances, the sanction imposed may be considerably less, or different, than that recommended by administrative officials. [FN24]

   Complainant seeks: (1) a 30-day suspension of Respondent's Animal Welfare Act license, (2) a civil penalty of $8,000, and (3) a cease and desist order. Complainant bases the requested 30-day suspension on the repeated and ongoing recordkeeping and facilities violations, and refusal to allow inspection. Complainant argues that a civil penalty of $8,000 is appropriate in light of the size of Respondent's business and that a cease and desist order is warranted to ensure the correction of existing violations and to prevent future interference with USDA inspectors. (Complainant's Brief at 23.)

   Furthermore, Complainant argues, inter alia, that Respondent, despite her claims to the contrary, has not acted in good faith; that Respondent has publicly announced her refusal to allow inspector Borchert to inspect her facility; that refusal to allow inspection is very detrimental to enforcement of the Animal Welfare Act, requiring a severe sanction; and that her actions were willful, despite her denial of willfulness and claims of good faith (Complainant's Brief at 23-24).

    *43 Complainant's sanction recommendation is well within the range of sanctions in these kinds of cases. The Department consistently imposes significant sanctions for violations of the Animal Welfare Act and the Regulations and Standards. [FN25] The Department in the past has permanently disqualified or revoked dealers' and exhibitors' licenses for the kind of violations that are found in this proceeding. [FN26]

   Respondent replies that the violations are not willful; that the violations caused no harm to the animals; that the animals are healthy and have never been injured, mistreated, crowded, or dirty; that a $3,000 civil penalty would be like $30,000 to others; that Respondent would not even be able to pay in time-scheduled payments such a large civil penalty; that Respondent lives frugally, but still would not be able to buy vaccines, dog food, and materials for building new cages; that Respondent has no savings; that all income is put back into the kennel; and that if Respondent is fined and suspended, it is the dogs which will suffer (Respondent's Appeal B at 15-18). However, a respondent's ability to pay a civil penalty and the collateral effects of a respondent's payment of a civil penalty are not considered in determining the amount of the civil penalty to be assessed. [FN27]

   Respondent also raises several concerns over what business activities are allowed while under suspension (Respondent's Appeal B at 16-18), but I direct Respondent to seek information directly from APHIS on that issue.

   The Complaint alleges that each of the violations alleged in the Complaint was willful, and the ALJ found the proven violations to be willful (Initial Decision and Order at 23). 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. [FN28]

   The ALJ found that Complainant proved 23 of the 33 violations alleged in the Complaint. [FN29] I agree with the ALJ on all the violations which he found, except that I dismiss the three violations alleged in paragraphs 1(f) and 3 of the Complaint. Thus, I find that Complainant has proven 20 of the 33 violations alleged. Also, I find Respondent's violations of 9 C.F.R. § 3.6(b) alleged in paragraph 1(b) of the Complaint and the October 25, 1995, violation of 9 C.F.R. § 3.1(f) alleged in paragraph 6(a) of the Complaint, are de minimis, and I do not assess a civil penalty or impose a suspension of Respondent's Animal Welfare Act license for these violations.

   Complainant has not charged, and the record does not show, that Respondent has any violations prior to those that are the subject of this proceeding.

   Some of Respondent's violations are de minimis, but the gravity of refusing to allow inspection and of repeatedly violating the Standards, is significant.

   Based upon inspector Borchert's inspection reports for the dates of June 19, 1995, August 8, 1995, and October 25, 1995, I conclude that Respondent usually maintains approximately 100 animals, and sometimes half that many, which makes Respondent's kennel a large facility (CX 1, 2, 3).

    *44 I agree with the ALJ that there is no evidence that Respondent's animals were not provided with overall humane care. Corrections were generally promptly made. [FN30] Moreover, the record does not reveal that there were any injuries emanating from any of the violations. Further, I agree with the ALJ that the record reveals that Respondent kept the animals in good condition (Tr. 194). I also find that Respondent usually exhibited good faith in attempting to achieve and to maintain compliance.

   After examining all relevant circumstances, in light of the Department's sanction policy, and taking into account the requirements of 7 U.S.C. § 2149(b), the remedial purposes of the Animal Welfare Act, and the recommendation of the administrative officials, I conclude that a cease and desist order, a 30-day suspension of Respondent's Animal Welfare Act license, and a $4,300 civil penalty are appropriate and necessary to ensure Respondent's compliance in the future, deter others from violating the Animal Welfare Act, and thereby fulfill the remedial purposes of the Animal Welfare Act.

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

Order

   1. Respondent Judie Hansen is assessed a civil penalty of $4,300. The civil penalty shall be paid by certified check or money order, made payable to the Treasurer of the United States, and sent to:

   Colleen A. Carroll

   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, Colleen A. Carroll, 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. 96-0048.

   2. Respondent, her 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 and Standards issued under the Animal Welfare Act, and in particular, shall cease and desist from:

   a. failing to ensure that primary enclosures for kittens have an elevated resting surface;

   b. failing to keep the premises clean in order to protect animals from injury and to facilitate the required husbandry practices;

   c. failing to provide for the removal and disposal of animal waste so as to minimize vermin infestation, odors, and disease hazards;

   d. failing to construct and maintain primary enclosures for rabbits so as to provide sufficient space for the animals to make normal postural adjustments with adequate freedom of movement;

   e. failing to keep the premises where housing facilities for dogs are located clean and control weeds;

   f. failing to store supplies of food in a manner that protects the supplies from spoilage, contamination, and vermin infestation;

   g. failing to ensure that animal areas are free of clutter, including equipment, furniture, and stored material;

    *45 h. failing to design and construct housing facilities for dogs and cats so as to be structurally sound and maintain the facilities in good repair, to protect animals from injury and to contain them;

   i. failing to provide for the regular and frequent collection, removal, and disposal of animal waste in a manner that minimizes the risk of contamination and disease;

   j. failing to remove excreta from primary enclosures for ferrets as often as necessary to prevent contamination of the animals contained in the primary enclosures and to minimize disease hazards and to reduce odors;

   k. failing to construct indoor and outdoor housing facilities so as to be structurally sound and maintain the facilities in good repair, to protect animals from injury and to contain them; and

   l. failing to allow an APHIS inspector access to her facility and records.

   The cease and desist provisions shall become effective on the day after service of this Order on Respondent.

   3. Respondent's Animal Welfare Act license is suspended for a period of 30 days, and continuing thereafter, until Respondent demonstrates to the Animal and Plant Health Inspection Service that Respondent is in full compliance with the Animal Welfare Act, the Regulations and Standards issued under the Animal Welfare Act, and this Order, including payment of the civil penalty assessed in this Order. When Respondent demonstrates to the Animal and Plant Health Inspection Service that she has satisfied the conditions in this paragraph of this Order, a Supplemental Order will be issued in this proceeding, upon the motion of the Animal and Plant Health Inspection Service, terminating the suspension of Respondent's Animal Welfare Act license after the expiration of the 30-day license suspension period.

   The Animal Welfare Act license suspension provisions in this Order shall become effective on the 65th day after service of this Order on Respondent.

FN1. See Domestic Return Receipt for Article Number P 093 041 165.

FN2. 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)).

FN3. See In re Lindsay Foods, Inc., 56 Agric. Dec. 1643, 1650 (1997) (Remand Order) (stating that 7 C.F.R. § 1.143(b)(1) prohibits administrative law judges and the judicial officer from entertaining a motion to dismiss on the pleading); In re Far West Meats, 55 Agric. Dec. 1045, 1049 (Clarification of Ruling on Certified Questions) (stating that 7 C.F.R. § 1.143(b)(1) prohibits an administrative law judge from entertaining a motion to dismiss on the pleading); In re All-Airtransport, Inc., 50 Agric. Dec. 412, 414 (1991) (Remand Order) (holding that the administrative law judge erred in dismissing the complaint since the judicial officer and the administrative law judge are bound by the Rules of Practice which provide that any motion will be entertained other than a motion to dismiss on the pleading); In re Hermiston Livestock Co., 48 Agric. Dec. 434 (1989) (Ruling on Certified Question) (stating that the judicial officer, as well as the administrative law judge, is bound by the Rules of Practice, and that under the Rules of Practice, the judicial officer has no discretion to entertain a motion to dismiss on the pleading). Cf. In re Don Van Liere, 34 Agric. Dec. 1641 (1975) (Order of Dismissal) (stating that the purpose of 9 C.F.R. § 202.10(b), which provides that, in proceedings under the Packers and Stockyards Act, 1921, as amended and supplemented, any motion will be entertained "except a motion to dismiss on the pleadings," is to prevent a respondent from filing a motion to dismiss on the pleadings).

FN4. The class of license held can be determined by looking at the letter designation in the license number, viz., Respondent's license number as of October 1996 was 45-A-0017, indicating that Respondent was a class "A" dealer.

FN5. The violations alleged in the . . . Complaint are discussed in the order in which Complainant . . . presented them in Complainant's Brief.

FN6. At the hearing, the ALJ granted Complainant's motion, without objection, to substitute 9 C.F.R. § 3.53(c) in place of 9 C.F.R. § 3.53(b) in paragraph 2(c) of the Complaint (Tr. 187-89).]

FN7. In [Respondent's] Answer . . ., [Respondent] states: P.S. - your investigator - Larry Neustel was here Sept. 20-95 - we showed him our entire kennel & pointed out where Don found fault - He told us he found nothing to warrant a fine and would recommend only a warning - I didn't know why we would be issued even a warning - Larry was a super, nice guy - we could easily work with someone like him - He had a lot of common sense on how a working kennel operates - He understood it is not a show place that is 100% perfect - 100% of the time! [Answer at 25.]

FN8. Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981).

FN9. In re David M. Zimmerman, 57 Agric. Dec. ___, slip op. at 19 (Nov. 18, 1998); 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).

FN10. The ALJ found that: (1) Respondent violated section 3.6(b) of the Standards (9 C.F.R. § 3.6(b)) on June 19, 1995, as alleged in paragraph 1(b) of the Complaint; (2) Respondent violated section 3.131(c) of the Standards (9 C.F.R. § 3.131(c)) on June 19, 1995, as alleged in paragraph 1(d) of the Complaint; (3) Respondent violated section 3.11(a) of the Standards (9 C.F.R. § 3.11(a)) on June 19, 1995, as alleged in paragraph 1(f) of the Complaint; (4) Respondent violated section 3.125(d) of the Standards (9 C.F.R. § 3.125(d)) on June 19, 1995, and August 8, 1995, as alleged in paragraph 2(b) of the Complaint; (5) Respondent violated section 3.53(c) of the Standards (9 C.F.R. § 3.53(c)) on June 19, 1995, and August 8, 1995, as alleged in paragraph 2(c) of the Complaint; (6) Respondent violated section 3.11(c) of the Standards (9 C.F.R. § 3.11(c)) on June 19, 1995, and August 8, 1995, as alleged in paragraph 2(d) of the Complaint; (7) Respondent violated section 2.75 of the Regulations (9 C.F.R. § 2.75) on June 19, 1995, and October 25, 1995, as alleged in paragraph 3 of the Complaint; (8) Respondent violated section 3.1(e) of the Standards (9 C.F.R. § 3.1(e)) on June 19, 1995, and October 25, 1995, as alleged in paragraph 4(a) of the Complaint; (9) Respondent violated section 3.1(b) of the Standards (9 C.F.R. § 3.1(b)) on June 19, 1995, and October 25, 1995, as alleged in paragraph 4(b) of the Complaint; (10) Respondent violated section 3.131(a) of the Standards (9 C.F.R. § 3.131(a)) on August 8, 1995, and October 25, 1995, as alleged in paragraph 6(b) of the Complaint; (11) Respondent violated section 3.125(a) of the Standards (9 C.F.R. § 3.125(a)) on June 19, 1995, August 8, 1995, and October 25, 1995, as alleged in paragraph 7 of the Complaint; and (12) Respondent violated section 2.126 of the Regulations (9 C.F.R. § 2.126) on July 11, 1997, as alleged in paragraph 8 of the Amended Complaint.

Moreover, the ALJ, in Finding of Fact 3(c), states that on June 19, 1995, and October 25, 1995, Respondent "failed to design and construct housing facilities for dogs and cats so as to be structurally sound and to maintain the facilities in good repair, to protect animals from injury, to contain them and to restrict the entrance of other animals" (Initial Decision and Order at 24), in violation of section 3.1(a) of the Standards (9 C.F.R. § 3.1(a)), as alleged in paragraph 4(c) of the Complaint. However, the ALJ's discussion only includes Respondent's failure to keep her facility in good repair, in violation of section 3.1(a) of the Standards (9 C.F.R. § 3.1(a)) on October 25, 1995 (Initial Decision and Order at 6). Therefore, I infer that the ALJ only found the October 25, 1995, violation of section 3.1(a) of the Standards (9 C.F.R. § 3.1(a)), alleged in paragraph 4(c) of the Complaint. Further still, the ALJ, in Finding of Fact 4(a), states that on August 8, 1995, and October 25, 1995, Respondent failed to "provide for the regular and frequent collection, removal and disposal of animal waste and bedding in a manner that minimizes the risk of contamination and disease" (Initial Decision and Order at 24), in violation of section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)), as alleged in paragraph 6(a) of the Complaint. However, the ALJ explicitly states in his discussion of the violations that the evidence was not sufficient to find that Respondent violated section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)) on August 8, 1995 (Initial Decision and Order at 9). Therefore, I infer that the ALJ only found the October 25, 1995, violation of section 3.1(f) of the Standards (9 C.F.R. § 3.1(f)) alleged in paragraph 6(a) of the Complaint.

FN11. 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. NTSB, 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).

FN12. In re David M. Zimmerman, 57 Agric. Dec. ___, slip op. at 39 (Nov. 18, 1998); 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).

FN13. Withrow v. Larkin, 421 U.S. 35, 46-47 (1975) (stating that a fair trial in a fair tribunal is a basic requirement of due process and this requirement applies to administrative agencies, which adjudicate, as well as to the courts; not only is a biased decisionmaker constitutionally unacceptable, but our system of law has always endeavored to prevent even the probability of unfairness); Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150 (1968) (stating that any tribunal permitted by law to try cases and controversies not only must be unbiased, but also must avoid even the appearance of bias); Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (stating that essential to a fair administrative hearing is an unbiased judge); Grant v. Shalala, 989 F.2d 1332, 1345 (3d Cir. 1993) (stating that bias on the part of administrative law judges may undermine the fairness of the administrative process); Roach v. NTSB, 804 F.2d 1147, 1160 (10th Cir. 1986) (stating that due process entitles an individual in an administrative proceeding to a fair hearing before an impartial tribunal), cert. denied, 486 U.S. 1006 (1988); Hummel v. Heckler, 736 F.2d 91, 93 (3d Cir. 1984) (stating that trial before an unbiased judge is essential to due process and that this rule of due process is applicable to administrative as well as judicial adjudications); Johnson v. United States Dep't of Agric., 734 F.2d 774, 782 (11th Cir. 1984) (stating that a fair hearing requires an impartial arbiter); Helena Laboratories Corp. v. NLRB, 557 F.2d 1183, 1188 (5th Cir. 1977) (stating that a fair trial by an unbiased and non-partisan trier of the facts is of the essence of the adjudicatory process as well when the judging is done in an administrative proceeding by an administrative functionary as when it is done in a court by a judge); Doraiswamy v. Secretary of Labor, 555 F.2d 832, 843 (D.C. Cir. 1976) (stating that a litigant's entitlement to a tribunal graced with an unbiased adjudicator obtains in administrative proceedings); Roberts v. Morton, 549 F.2d 158, 164 (10th Cir. 1976) (stating that an adjudicatory hearing before an administrative tribunal must afford a fair trial in a fair tribunal as a basic requirement of due process), cert. denied, 434 U.S. 834 (1977); Wasson v. Trowbridge, 382 F.2d 807, 813 (2d Cir. 1967) (stating that a fair hearing requires an impartial trier of fact); Amos Treat & Co. v. SEC, 306 F.2d 260, 263 (D.C. Cir. 1962) (stating that quasi-judicial proceedings entail a fair trial and fairness requires an absence of actual bias in the trial of cases and our system of law has always endeavored to prevent even the appearance of bias); NLRB v. Phelps, 136 F.2d 562, 563 (5th Cir. 1943) (stating that a fair trial by an unbiased and non-partisan trier of the facts is of the essence of the adjudicatory process as well when the judging is done in an administrative proceeding by an administrative functionary as when it is done in a court by a judge); Continental Box Co. v. NLRB, 113 F.2d 93, 95-96 (5th Cir. 1940) (stating that it is the essence of a valid judgment that the body that pronounces judgment in a judicial or quasi-judicial proceeding be unbiased); Inland Steel Co. v. NLRB, 109 F.2d 9, 20 (7th Cir. 1940) (stating that trial by a biased judge is not in conformity with due process, and the recognition of this principle is as essential in proceedings before administrative agencies as it is before the courts).

FN14. Akin v. Office of Thrift Supervisor, 950 F.2d 1180, 1186 (5th Cir. 1992) (stating that in order to disqualify an administrative law judge for bias, the moving party must plead and prove, with particularity, facts that would persuade a reasonable person that bias exists); Gimbel v. CFTC, 872 F.2d 196, 198 (7th Cir. 1989) (stating that in order to set aside an administrative law judge's findings on the grounds of bias, the administrative law judge's conduct must be so extreme that it deprives the hearing of that fairness and impartiality necessary to fundamental fairness required by due process); Miranda v. NTSB, 866 F.2d 805, 808 (5th Cir. 1989) (stating that a substantial showing of bias is required to disqualify a hearing officer or to obtain a ruling that the hearing is unfair); NLRB v. Webb Ford, Inc., 689 F.2d 733, 737 (7th Cir. 1982) (stating that the standard for determining whether an administrative law judge's display of bias or hostility requires setting aside his findings and conclusions and remanding the case for a hearing before a new administrative law judge is an exacting one, and requires that the administrative law judge's conduct be so extreme that it deprives the hearing of that fairness and impartiality necessary to that fundamental fairness required by due process); Nicholson v. Brown, 599 F.2d 639, 650 (5th Cir. 1979) (stating that in order to maintain a claim of personal bias on the part of an administrative tribunal, there must be a substantial showing); Roberts v. Morton, 549 F.2d 158, 164 (10th Cir. 1976) (stating that a substantial showing of personal bias is required to disqualify a hearing officer or to obtain a ruling that the hearing is unfair), cert. denied, 434 U.S. 834 (1977); United States ex rel. DeLuca v. O'Rourke, 213 F.2d 759, 763 (8th Cir. 1954) (stating that it requires a substantial showing of bias to disqualify a hearing officer or to justify a ruling that the hearing was unfair).

FN15. See also Sheldon v. SEC, 45 F.3d 1515, 1518-19 (11th Cir. 1995) (holding that Securities and Exchange Commission proceedings do not violate the "separation of powers" or deny broker-dealers due process of law merely because the agency combines investigative, adversarial, and adjudicative functions); Trust & Investment Advisers, Inc. v. Hogsett, 43 F.3d 290, 297 (7th Cir. 1994) (stating that it has long been settled that the combination of investigative and adjudicative functions within an agency, absent more, does not create an unconstitutional risk of bias in administrative adjudication); Elliott v. SEC, 36 F.3d 86, 87 (11th Cir. 1994) (per curiam) (stating that an agency may combine investigative, adversarial, and adjudicative functions, as long as no employees serve in dual roles); Greenberg v. Board of Governors of the Federal Reserve System, 968 F.2d 164, 167 (2d Cir. 1992) (stating that the Administrative Procedure Act is violated only where an individual actually participates in a single case as both a prosecutor and an adjudicator); Touche Ross & Co. v. SEC, 609 F.2d 570, 581 (2d Cir. 1979) (stating that it is uniformly accepted that many agencies properly combine the functions of prosecutor, judge, and jury, and a hearing conducted by such an agency does not automatically violate due process); Wright v. SEC, 112 F.2d 89, 94 (2d Cir. 1940) (stating the blending of the functions of enforcement and adjudication in a single agency is not sufficient to invalidate a hearing fairly conducted).

FN16. In re Daniel Strebin, 56 Agric. Dec. 1095, 1145 (1997) (stating that the Rules of Practice provide for filing of a response to an appeal and in such response, any relevant issue not presented in the appeal petition may be raised); In re Otto Berosini, 54 Agric. Dec. 886, 888 n.** (1995) (stating that respondent's original appeal was late-filed and would have been dismissed on jurisdictional grounds; however, since respondent's reply to complainant's timely appeal properly incorporated by reference respondent's original appeal, respondent's original appeal constitutes a timely cross-appeal); In re Unique Nursery & Garden Center (Decision as to Valkering U.S.A., Inc.), 53 Agric. Dec. 377, 424-25 (1994) (stating that the Rules of Practice provide for filing of a response to an appeal and in such response any relevant issue not presented in the appeal petition may be raised), aff'd, 48 F.3d 305 (8th Cir. 1995).

FN17. See United States v. Zucker, 161 U.S. 475, 481 (1895) (stating that the Sixth Amendment relates to prosecution of an accused person which is technically criminal in nature); United States v. Loaisiga, 104 F.3d 484, 486 (1st Cir.) (stating that deportation proceedings are civil matters exempt from Sixth Amendment protections; they are primarily conducted by administrative bodies and not by courts), cert. denied, 117 S. Ct. 2447 (1997); Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) (stating that deportation hearings are deemed civil proceedings and thus aliens have no constitutional right to counsel under the Sixth Amendment); Father & Sons Lumber and Building Supplies, Inc. v. NLRB, 931 F.2d 1093, 1097 (6th Cir. 1991) (holding that the Sixth Amendment does not apply to a civil matter, such as a labor relations proceeding conducted by the National Labor Relations Board); United States v. Schellong, 717 F.2d 329, 336 (7th Cir. 1983) (holding that denaturalization proceedings are not criminal proceedings; therefore, there is no right to a jury trial under Article III of the United States Constitution or the Sixth Amendment), cert. denied, 465 U.S. 1007 (1984); Schultz v. Wellman, 717 F.2d 301, 307 (6th Cir. 1983) (holding that the Sixth Amendment does not apply to administrative discharge proceedings conducted by the National Guard because such proceedings are not criminal in nature); Savina Home Industries, Inc. v. Secretary of Labor, 594 F.2d 1358, 1366 (10th Cir. 1979) (rejecting the characterization of Occupational Safety and Health Administration administrative proceedings, in which civil penalties can be assessed, as criminal proceedings and the argument that the Sixth Amendment is applicable to such proceedings); Camp v. United States, 413 F.2d 419, 422 (5th Cir.) (holding that there is no Sixth Amendment right to counsel in non-criminal administrative proceedings before the Selective Service Board), cert. denied, 396 U.S. 968 (1969); Haven v. United States, 403 F.2d 384, 385 (9th Cir. 1968) (holding that the Sixth Amendment right to counsel does not apply in administrative proceedings in the selective service process), cert. dismissed, 393 U.S. 1114 (1969); Olshausen v. Commissioner, 273 F.2d 23, 27 (9th Cir. 1960) (stating that the Sixth Amendment applies only to criminal proceedings and that Congress may properly provide civil proceedings for the collection of civil penalties which are civil or remedial sanctions rather than punitive and the Sixth Amendment has no application to such proceedings); Board of Trade of City of Chicago v. Wallace, 67 F.2d 402, 407 (7th Cir. 1933) (rejecting contention that proceedings under section 6(a) of the Grain Futures Act of September 21, 1922, are "essentially criminal" and holding that, since the proceedings are not criminal in nature, there is no right to a jury trial under Article III, § 2 of the United States Constitution), cert. denied, 291 U.S. 680 (1934); Gee Wah Lee v. United States, 25 F.2d 107 (5th Cir.) (per curiam) (concluding that the appeal of a deportation order by a United States commissioner is not a trial on a criminal charge covered by Article III, § 2 of the United States Constitution), cert. denied, 277 U.S. 608 (1928); Olearchick v. American Steel Foundries, 73 F. Supp. 273, 279 (W.D. Pa. 1947) (stating that the guarantee under the Sixth Amendment applies only to those proceedings technically criminal in nature); Farmers' Livestock Comm'n Co. v. United States, 54 F.2d 375, 378 (E.D. Ill. 1931) (stating that the Sixth Amendment is only applicable to proceedings technically criminal in nature and concluding that the Sixth Amendment is not applicable to administrative proceedings under the Packers and Stockyards Act of 1921); In re Conrad Payne, 57 Agric. Dec. ___, slip op. at 10-11 (Dec. 8, 1998) (concluding that the respondent's rights under the Sixth Amendment are not implicated in an administrative proceeding instituted under section 2 of the Act of February 2, 1903, as amended); In re Saulsbury Enterprises, Inc., 57 Agric. Dec. 82, 100 (1997) (concluding that Article III, § 2 of the United States Constitution and the Sixth Amendment, which afford the right to a jury trial in criminal proceedings, are not GRt applicable to administrative proceedings conducted in accordance with the Administrative Procedure Act and instituted under section 8c(14)(B) of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. § 608c(14)(B)) (Order Denying Pet. for Recons.)).

FN18. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 n.4 (1989) (stating that "[t]he Seventh Amendment protects a litigant's right to a jury trial only if a cause of action is legal in nature and it involves a matter of 'private right"'); Tull v. United States, 481 U.S. 412, 417 (1987) (stating that the Court has construed the language of the Seventh Amendment to require a jury trial on the merits in those actions that are analogous to "Suits at common law"); Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 449 (1977) (stating that "[t]he phrase 'Suits at common law' has been construed to refer to cases tried prior to the adoption of the Seventh Amendment in courts of law in which jury trial was customary as distinguished from courts of equity or admiralty in which jury trial was not"); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937) (stating that the Seventh Amendment preserves the right to trial by jury which existed under the common law when the amendment was adopted; thus the Seventh Amendment is not applicable where the proceeding is not in the nature of a suit at common law); Parsons v. Bedford, 3 Pet. 433, 445-46 (1830) (construing the phrase "Suits at common law" in the Seventh Amendment as referring to cases tried in courts of law in which jury trial was customary as distinguished from courts of equity or admiralty in which jury trial was not customary); Cavallari v. Comptroller of the Currency, 57 F.3d 137, 145 (2d Cir. 1995) (stating that the Seventh Amendment right to a jury trial attaches in cases involving legal rather than equitable claims); Simpson v. Office of Thrift Supervision, 29 F.3d 1418, 1423 (9th Cir. 1994) (stating that the Supreme Court has consistently interpreted the phrase "Suits at common law" in the Seventh Amendment to refer to suits in which legal rights are to be ascertained and determined, in contradistinction to those suits in which equitable rights alone are recognized and equitable remedies are administered), cert. denied, 513 U.S. 1148 (1995); Rosenthal & Co. v. Bagley, 581 F.2d 1258, 1261 (7th Cir. 1978) (stating that the right to a jury turns on the nature of the issue to be resolved and on the forum in which it is to be resolved); Welch v. TVA, 108 F.2d 95, 99 (6th Cir. 1939) (stating that the usual method of determining the value of private property taken for public use has been to accord the land owner the right to have damages assessed by a jury, but this is a matter of legislative discretion because condemnation proceedings by the United States for the use and benefit of the Tennessee Valley Authority are not suits at common law in which the right to trial by jury is guaranteed by the Seventh Amendment), cert. denied, 309 U.S. 688 (1940); NLRB v. Tidewater Exp. Lines, Inc., 90 F.2d 301, 303 (4th Cir. 1937) (per curiam) (stating that the Seventh Amendment preserves the right to trial by jury which existed under the common law when the amendment was adopted; thus the Seventh Amendment is not applicable where the proceeding is not in the nature of a suit at common law); Olearchick v. American Steel Foundries, 73 F. Supp. 273, 279 (W.D. Pa. 1947) (stating that the guarantee of the right to trial by jury under the Seventh Amendment applies only to suits as were maintainable under common law at the time the amendment was adopted); Farmers' Livestock Comm'n Co. v. United States, 54 F.2d 375, 378 (E.D. Ill. 1931) (stating that the guarantee of the right to trial by jury under the Seventh Amendment applies only to suits of such character as were maintainable at common law at the time the amendment was adopted); In re Hudson, 170 B.R. 868, 873-74 (E.D.N.C. 1994) (stating that the right to a jury trial under the Seventh Amendment extends only to matters of private right and finding that a creditor who files a claim with the bankruptcy court loses the Seventh Amendment right to a jury trial); Kentucky Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 854 (Ky. 1981) (stating that the United States Supreme Court has interpreted the right to trial by jury to mean the right which existed in suits under common law in 1791, when the Seventh Amendment was adopted; the Seventh Amendment does not create a jury trial right, it simply preserves the right that already existed under the common law).

FN19. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 n.4 (1989) (stating that if a claim that is legal in nature asserts a public right, then the Seventh Amendment does not entitle the parties to a jury trial if Congress assigns its adjudication to an administrative agency or specialized court of equity); Tull v. United States, 481 U.S. 412, 418 n.4 (1987) (noting that the Seventh Amendment is not applicable to administrative proceedings); Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 449-461 (1977) (stating that when Congress creates statutory public rights, it may assign their adjudication to an administrative agency with which a jury trial would be incompatible without violating the Seventh Amendment's injunction that jury trial is to be preserved at common law); Pernell v. Southhall Realty, 416 U.S. 363, 383 (1974) (assuming that the Seventh Amendment would not be a bar to a congressional effort to entrust landlord-tenant disputes, including those over the right to possession, to an administrative agency; and stating that Block v. Hirsh, 256 U.S. 135 (1921), stands for the principle that the Seventh Amendment is generally inapplicable in administrative proceedings where jury trials would be incompatible with the whole concept of administrative adjudication); Curtis v. Loether, 415 U.S. 189, 194 (1974) (stating that the Seventh Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudication); Marine Shale Processors, Inc. v. EPA, 81 F.3d 1371, 1378 (5th Cir. 1996) (stating that application to the Environmental Protection Agency for a boiler and industrial furnace permit required under the Resource Conservation and Recovery Act triggered a public rights dispute; therefore, the applicant has no right to a jury trial under the Seventh Amendment), cert. denied, 519 U.S. 1055 (1997); Cavallari v. Comptroller of the Currency, 57 F.3d 137, 145 (2d Cir. 1995) (stating that when the government sues in its sovereign capacity to enforce public rights, Congress may assign the fact-finding and initial adjudication to an administrative forum); Simpson v. Office of Thrift Supervision, 29 F.3d 1418, 1423 (9th Cir. 1994) (stating that in cases in which "public rights" are being litigated, e.g., cases in which the government sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact, the Seventh Amendment does not prohibit Congress from assigning that fact-finding function and initial adjudication to an administrative forum with which a jury would be incompatible), cert. denied, 513 U.S. 1148 (1995); Sasser v. Administrator, EPA, 990 F.2d 127, 130 (4th Cir. 1993) (holding that a person charged in an administrative complaint for discharging pollutants has no Seventh Amendment right to a jury trial and stating that "[g]enerally speaking, the Seventh Amendment does not apply to disputes over statutory public rights, 'those which arise between the Government and persons subject to its authority in connection with the performance of constitutional functions of the executive and legislative departments"'); Joy Technologies, Inc. v. Manbeck, 959 F.2d 226, 228 (Fed. Cir.) (stating that public rights may be constitutionally adjudicated by legislative courts and administrative agencies without implicating the Seventh Amendment right to a jury trial), cert. denied, 506 U.S. 829 (1992); Myron v. Hauser, 673 F.2d 994, 1004 (8th Cir. 1982) (stating that generally the Seventh Amendment is not applicable to administrative or statutory proceedings and concluding that the Seventh Amendment is not applicable to reparation proceedings before the Commodity Futures Trading Commission); Skidmore v. Consolidated Rail Corp., 619 F.2d 157, 159 (2d Cir. 1979) (stating that the Supreme Court has held that the Seventh Amendment right to a jury trial does not extend to situations where Congress has seen fit to set up an administrative procedure for adjudication of disputes arising out of statutorily created rights), cert. denied, 449 U.S. 854 (1980); Rosenthal & Co. v. Bagley, 581 F.2d 1258, 1261 (7th Cir. 1978) (stating that at least when only public rights are involved, Congress may provide for administrative fact-finding with which a jury trial would be incompatible and even where the statutory public rights are enforceable in favor of a private party they can be committed to an administrative agency for determination); Floyd S. Pike Electrical Contractor, Inc. v. Occupational Safety and Health Review Comm'n, 557 F.2d 1045 (4th Cir. 1977) (per curiam) (stating that the Seventh Amendment is not a bar to the imposition of civil penalties by an administrative tribunal, as authorized by the Occupational Safety and Health Act of 1970); Penn-Dixie Steel Corp. v. Occupational Safety and Health Review Comm'n, 553 F.2d 1078, 1080 (7th Cir. 1977) (stating that the Supreme Court held in Atlas Roofing Co., supra, that the Seventh Amendment does not bar Congress from assigning to an administrative agency the task of adjudicating Occupational Safety and Health Act violations); Dorey Electric Co. v. Occupational Safety and Health Review Comm'n, 553 F.2d 357, 358 (4th Cir. 1977) (per curiam) (stating that the Supreme Court held in Atlas Roofing Co., supra, that the Seventh Amendment poses no bar to the disposition of a charge of the violation of the Occupational Safety and Health Act and the assessment of a civil penalty by an administrative tribunal); Mohawk Excavating, Inc. v. Occupational Safety and Health Review Comm'n, 549 F.2d 859, 865 (2d Cir. 1977) (stating that the Seventh Amendment is not a bar to the imposition of civil penalties through the administrative process without a jury trial in the enforcement of the Occupational Safety and Health Act); Clarkson Construction Co. v. Occupational Safety and Health Review Comm'n, 531 F.2d 451, 455-56 (10th Cir. 1976) (stating that it is within the power of Congress to choose an administrative process for the enforcement of the safe and healthful working conditions objective of the Occupational Safety and Health Act of 1970 and the administrative proceeding which resulted in the imposition of a civil sanction for the violation of the Act is not an action at common law within the meaning of the Seventh Amendment; hence no jury trial right arises); National Velour Corp. v. Durfee, 637 A.2d 375, 379 (R.I. 1994) (stating that if an action involves the adjudication of public rights, no jury is required pursuant to the Seventh Amendment); Kentucky Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 854 (Ky. 1981) (stating that where a right is created by statute and committed to an administrative forum, jury trial is not required by the Seventh Amendment); In re Conrad Payne, 57 Agric. Dec. ___, slip op. at 14-15 (Dec. 8, 1998) (concluding that the Seventh Amendment does not entitle the respondent to a jury trial in an administrative proceeding instituted under section 2 of the Act of February 2, 1903, as amended); In re Saulsbury Enterprises, 56 Agric. Dec. 82, 100 (1997) (holding that there is no constitutional right to a jury trial in administrative proceedings conducted in accordance with the Administrative Procedure Act and instituted under section 8c(14)(B) of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. § 608c(14)(B)) (Order Denying Pet. for Recons.)); In re James W. Hickey, 47 Agric. Dec. 840, 851 (1988) (rejecting respondent's contention that he was improperly denied a jury trial in an administrative proceeding under the Animal Welfare Act, and stating that it is well settled that a jury trial is not required in an administrative disciplinary proceeding), aff'd, 878 F.2d 358, 1989 WL 71462 (9th Cir. 1989) (not to be cited as precedent under 9th Circuit Rule 36-3), printed in 48 Agric. Dec. 107 (1989).

FN20. See generally Gandarillas-Zambrana v. Board of Immigration Appeals, 44 F.3d 1251, 1256 (4th Cir.) (stating that an alien's due process rights were not violated by holding a waiver of deportation proceeding in Louisiana, rather than near his residence in Virginia, where the alien did not move for a change of venue, but indicated a willingness to proceed in Louisiana), cert. denied, 516 U.S. 806 (1995).

FN21. Based on Ms. Carroll's status in this proceeding and the context of Respondent's argument, I infer that Ms. Carroll is licensed to practice law and that Respondent's reference to "Ms. Carroll's license" is to Ms. Carroll's license to practice law.

FN22. See generally, e.g., Merriam Webster's Collegiate Dictionary 396 (10th ed. 1997):

   esquire . . . 1 : a member of the English gentry ranking below a knight 2 : a candidate for knighthood serving as shield bearer and attendant to a knight 3 -- used as a title of courtesy usu. placed in its abbreviated form after the surname <John R. Smith, Esq.> 4 archaic : a landed proprietor

The Oxford English Dictionary Vol. V, 398 (2d ed. 1991): esquire . . . .

   1.a. Chivalry. A young man of gentle birth, who as an aspirant to knighthood, attended upon a knight, carried his shield, and rendered him other services

   . . . . .

   2. A man belonging to the higher order of English gentry, ranking immediately below a knight

  . . . . .

   3. As a title accompanying a man's name. Originally applied to those who were 'esquires' in sense 2; subsequently extended to other persons to whom an equivalent degree of rank or status is by courtesy attributed

   . . . . .

   4. . . . A gentleman who escorts a lady in public. Bouvier's Law Dictionary 1074 (3d ed. 1914):

ESQUIRE. A title applied by courtesy to officers of almost every description, to members of the bar, and others. No one is entitled to it by law; and therefore it confers no distinction in the law. See also Esquire, Inc. v. Esquire Slipper Mfg. Co., 243 F.2d 540, 543 (1st Cir. 1957) (stating that the word esquire is not capable of precise definition, but it is a word firmly established in the english vocabulary and the word carries with it strong implications of youthful gentility in an aura of wealth); Christian v. Ashley County, 24 Ark. 142, 151 (Ark. 1863) (stating that the word esquire is a sufficient designation of the occupation of an associate judge); Call v. Foresman, 5 Watts 331, 332 (Pa. 1836) (per curiam) (stating that the word esquire is properly used to designate a justice of the peace); Commonwealth v. Vance, 15 Serg. & Rawle 35, 37 (Pa. 1826) (indicating that the term esquire applies to associate justices); Antonelli v. Silvestri, 137 N.E.2d 146, 147- 48 (App. Ct. Ohio 1935) (stating that by common acceptation an esquire has no relation to the law; it is often added to the name of poets or artists and the term may be applied to a landed proprietor or country squire; the term is one of courtesy, indicating a gentleman attending or escorting a lady; nowhere do we find that the term esquire denotes an attorney at law).

FN23. Black's Law Dictionary 546 (6th ed. 1990).

FN24. In re Richard Lawson, 57 Agric. Dec. ___, slip op. at 67-68 (Oct. 15, 1998); In re Marilyn Shepherd, 57 Agric. Dec. ___, slip op. at 54 (June 26, 1998); In re C.C. Baird, 57 Agric. Dec.___, slip op. at 61-62 (Mar. 20, 1998), appeal docketed No. 98-3296 (8th Cir. Sept. 10, 1998); In re Scamcorp, Inc., 57 Agric. Dec. ___, slip op. at 62-63 (Jan. 29, 1998); In re Allred's Produce, 56 Agric. Dec. 1884, 1918-19 (1997), appeal docketed, No. 98-60187 (5th Cir. Apr. 3, 1998); In re Kanowitz Fruit & Produce, Co., 56 Agric. Dec. 942, 953 (1997) (Order Denying Pet. for Recons.); In re William E. Hatcher, 41 Agric. Dec. 662, 669 (1982); In re Sol Salins, Inc., 37 Agric. Dec. 1699, 1735 (1978); In re Braxton Worsley, 33 Agric. Dec. 1547, 1568 (1974).

FN25. See, e.g., In re David M. Zimmerman, 57 Agric. Dec. ___ (Nov. 18, 1998) (imposing a $20,000 civil penalty and a permanent disqualification from obtaining a license for 33 violations of the Animal Welfare Act and the Regulations); 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 of Respondent's license for 19 violations of the Animal Welfare Act and the Regulations and Standards); In re John D. Davenport, 57 Agric. Dec. ___, slip op. at 42-43 (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. ___, slip op. at 64-65 (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).

FN26. See, e.g., In re David M. Zimmerman, 57 Agric. Dec. ___ (Nov. 18, 1998) (imposing a $20,000 civil penalty and a permanent disqualification from obtaining a license for 33 violations of the Animal Welfare Act and the Regulations); In re John D. Davenport, 57 Agric. Dec. ___, slip op. at 42-43, 63-71 (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 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 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 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).

FN27. The Judicial Officer did give consideration to ability to pay when determining the amount of the civil penalty to assess under the Animal Welfare Act in In re Gus White III, 49 Agric. Dec. 123, 152 (1990). The Judicial Officer subsequently held that consideration of ability to pay in Gus White III was inadvertent error and that ability to pay would not be considered in determining the amount of civil penalties assessed under the Animal Welfare Act in the future. See In re David M. Zimmerman, 57 Agric. Dec. ___, slip op. at 16 n.1 (Nov. 18, 1998) (stating that the Judicial Officer has pointed out that when determining the amount of a civil penalty to be assessed under the Animal Welfare Act, consideration need not be given to a respondent's ability to pay the civil penalty); In re James J. Everhart, 56 Agric. Dec. 1401, 1416 (1997) (stating that respondent's inability to pay the civil penalty is not a consideration in determining civil penalties assessed under the Animal Welfare Act); In re Mr. & Mrs. Stan Kopunec, 52 Agric. Dec. 1016, 1023 (1993) (stating that ability to pay a civil penalty is not a relevant consideration in Animal Welfare Act cases); In re Micheal McCall, 52 Agric. Dec. 986, 1008 (1993) (stating that ability or inability to pay is not a criterion in Animal Welfare Act cases); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1071 (1992) (stating that the Judicial Officer once gave consideration to the ability of respondents to pay a civil penalty, but that the Judicial Officer has removed the ability to pay as a criterion, since the Animal Welfare Act does not require it), 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 Jerome A. Johnson, 51 Agric. Dec. 209, 216 (1992) (stating that the holding in In re Gus White III, 49 Agric. Dec. 123 (1990), as to consideration of ability to pay, was an inadvertent error; ability to pay is not a factor specified in the Animal Welfare Act and it will not be considered in determining future civil penalties under the Animal Welfare Act).

FN28. 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 David M. Zimmerman, 57 Agric. Dec. ___, slip op. at 32 (Nov. 18, 1998); 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 57-58 (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. 25, 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.

FN29. See note 6.

FN30. Corrections are to be encouraged and may be taken into account when determining the sanction to be imposed. In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1456 n.8 (1997), appeal docketed, No. 98- 3100 (3d Cir. Feb. 19, 1998); In re Fred Hodgins, 56 Agric. Dec. 1242, 1316 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 269, 272-73 (1997) (Order Denying Pet. for Recons.); In re John Walker, 56 Agric. Dec. 350, 367 (1997); In re Mary Meyers, 56 Agric. Dec. 322, 348 (1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 142 (1996); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1070 (1992), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)).

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